Liu v Minister for Immigration
[2013] FCCA 64
•19 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIU v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 64 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – where certificate issued under condition 8202(3) of Regulations for unsatisfactory attendance by applicant’s education provider – where applicant’s student visa cancelled pursuant to s.116 of Migration Act 1958 – where applicant claimed to not be a student of education provider when certificate issued – where Tribunal found applicant to be such a student – whether merits review sought – whether Tribunal failed to make inquiries – where decision maker not permitted to go behind certification – where certification constitutes non-compliance with Regulations – where internal review of issuance of certificate available – where minister must consider whether exceptional circumstances exist for non-compliance that were beyond visa holder’s control – whether regulatory scheme invalid. |
| Legislation: Migration Act 1958 (Cth), ss.116, 119(1)(b)(i), 137J, 137K, 137L Education Services for Overseas Students Act 2000, s.20 Migration Regulations 1994 |
| Cases cited: NARE v Minister for Immigration & Anor [2003] FCA 554 Minister for Immigration & Anor v SZIAI (2009) ALJR 1123 Minister for Immigration v SZGUR & Another (2011) 273 ALR 223 Teuila v Minister for Immigration and Citizenship [2012] FCAFC 171 Minister for Immigration and Citizenship v Dhanoa andAnother (2009) ALD 36 Mo v Minister for Immigration & Anor (2009) 112 ALD 329 Lin v Minister for Immigration & Anor [2011] FMCA 329 at [86] Hassan v Minister for Immigration & Anor [2012] FCA 816 Plaintiff M47/2012 v Director General of Security (2012) 292 ALR 243 Kumar v Minister for Immigration & Anor [2011] FMCA 741 Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30 Applicant Y v Minister for Immigration and Citizenship and Another (2008) 100 ALD 544 Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 Ghori v Minister for Immigration and Citizenship [2011] FCA 759 Patel v Minister for Immigration & Anor [2011] FMCA 112 Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384 |
| Applicant: | XINTIAN LIU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1474 of 2012 |
| Judgment of: | Judge Raphael |
| Hearing date: | 12 March 2013 |
| Date of Last Submission: | 12 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Dobbie & Devine Immigration Lawyers |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
Application dismissed.
Applicant to pay the respondents’ costs assessed in the sum of $6,471.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1474 of 2012
| XINTIAN LIU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ms Liu is a citizen of China who came to Australia as the holder of a subclass 571 student visa granted on 13 July 2009 and valid until 15 March 2013. In early 2011 Ms Liu, who had moved from Canberra to Sydney, was studying year 11 high school at an educational establishment known as Taylors College. The course started in February 2011. The applicant was not happy there. She sought to transfer to another school. Taylors College was reluctant to release her within the first six months of her course. In the meantime her attendance at Taylors College effectively ceased. On 2 May 2011 Taylors College provided Ms Liu with a certificate for the purposes of sub clause 8202(3) of Schedule 3 of the Migration Regulations 1994[1] by which Taylors College:
“Certifies Ms Xintian Liu, for course Senior Secondary (Years 11 and 12), as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).” [CB 1]
[1] “Regulations”
Ms Liu received the standard letter from the college that accompanied the certificate informing her of her options under ss.137J, 137K and 137L of the Migration Act 1958 (Cth)[2] or 116 of the Act. These sections provide that upon receipt of a notice a student may attend an office of the department. If she does so the Minister will consider the cancellation of her visa under s.116 of the Act and Regulation 2.43(2)(b)(ii). If the student does not attend at an office of the department then the visa will be automatically cancelled after 28 days. If that mandatory cancellation occurs the student is entitled under s.137K to apply for revocation of the cancellation and the revocation will be dealt with pursuant to s.137L. That section is set out below:
[2] “Act”
“Dealing with the application
(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or
(b) that the breach was due to exceptional circumstances beyond the non-citizen's control; or
(c) of any other matter prescribed in the regulations.
(2) However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.
(3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.”
The criteria upon which the Minister would consider cancellation of a visa under s.116 and the Regulation is in similar form:
“Regulation 2.43(2)(b)(ii)
For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(b) in the case of a Student (Temporary) (Class TU) visa:
(i) that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or
(ii) that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non-compliance was not due to exceptional circumstances beyond the visa holder's control.”
Ms Liu’s visa was cancelled under s.116 but the provisions of s.137L are relevant for the purposes of her argument in these proceedings as both sections deal with the result of a failure to comply with Condition 8202 that was one of the conditions upon which her visa was granted.
On 16 May 2011 Ms Liu was given a notice of intention to consider cancellation of her visa under s.116, of the Act [CB 13]. The notice provided her with information concerning s.116 Regulation 2.43 and Condition 8202. She was given an opportunity to respond and say why she thought the grounds for cancellation did not exist and whether there were any exceptional circumstances beyond her control which caused her not to comply with Condition 8202. Ms Liu employed a migration agent who submitted representations on her behalf including a psychologist’s report. On 3 June 2011 a delegate of the Minister determined to cancel the visa and provided her with a notice of cancellation [CB 39 – 47]. Ms Liu then sought review of that decision from the Migration Review Tribunal where she was represented by another firm of migration agents who made representations, some of those of a legal nature, on her behalf. The further representations that were made related to the time at which the certificate for the purposes of sub-clause 8202(3) of Schedule 8 of the Regulations was sent. Documents obtained by the Tribunal from the College indicated that Ms Liu’s enrolment with Taylors College was terminated on 2 May 2011 which was the date that the notice was also issued. The applicant argued before the Tribunal that the College was not in a position to issue her with a valid notice, because she was not, at the time the notice was issued, an accepted student of Taylors College.
The Tribunal considered these representations and at [86] [CB 204] said:
“[86]Evidence noted above shows that on 2 May 2011, the applicant’s former education provider, Taylors College, certified her as not achieving satisfactory course attendance in her Senior Secondary (Years 11 and 12) course. The applicant’s representative argues that this was not a valid certification under s.20 of the ESOS Act as, when the certification notice was sent to the applicant, she was not an ‘accepted student’ of the Taylors College because, although the sending of the notice and the termination or cancellation of her enrolment were done on the same date by the Taylors College, being 2 May 2011, the termination was done before the sending of the certification notice, according to the ‘Student Details record’ entries. He also argues that, alternatively, that she was no longer an ‘accepted student’ of the Taylors College at the time when she was certified because at this time she was enrolled with the Oxford College. The Tribunal does not accept these arguments and considers that the certification was valid because when she was certified she was an ‘accepted student’ of the Taylors college and her enrolment with the Oxford College at this time did not make her not an ‘accepted student’ of the Taylors College. In any case, even if the Tribunal accepts the representative’s arguments, it is unable to look behind the certification by the Taylors College according to the Federal Magistrates Court of Australia’s decisions in Mo v MIAC & Anor [2009] FMCA 1026 (Raphael FM 23 October 2009); Lin v MIAC [2011] FMCA 529 (Barnes FM 12 July 2011). The mere fact of certification gives rise to a ground for cancellation under paragraph 116(1)(b). Accordingly, the Tribunal finds the education provider has certified that the applicant has not achieved satisfactory course attendance for s.19 of the ESOS Act, and standard 11 of the National Code 2007, and therefore that the applicant has not complied with condition 8202(3)(b).”
The Tribunal determined to affirm the decision under review in its decision record of 6 June 2012. The applicant filed an application with this court seeking review of that decision on 5 July 2012 and proceeded at the hearing upon an Amended Application filed in court on 12 March 2013. There were two grounds of review pursued in that Amended Application although they are covered in three grounds. Ground 1 and Ground 2 should be read together and Ground 3 is a separate matter of concern. Grounds 1 and 2 are in the following form:
“1. The Tribunal misinterpreted and misapplied the law to the facts
Particulars
(i)The Tribunal found that the Applicant had not complied with Condition 8202 of the Migration Regulations 1994 (‘the regulations’), to which her student visa was subject.
(a) The Tribunal found that the Applicant had been certified by Taylors College as not achieving satisfactory course attendance for s19 of the Education Services for Overseas Students Act 2000 (‘the ESOS Act’) and for Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (‘the National Code 2007’). (‘the purported certification’)
(b) The Applicant was not an enrolled student at Taylors College at the time of the purported certification by Taylors College.
(c) As the Applicant was not an enrolled student of Taylors College, there was no certification for the purposes of Condition 8202, and therefore no breach of Condition 8202.
(d) The Tribunal was therefore not permitted to affirm the cancellation on the basis of a breach that did not exist in law.
(e) The Tribunal further erred by finding that it could not look behind that purported certification.
2.The Tribunal failed to complete its core function of review
Particulars
(i)The Tribunal failed to enquire with Taylors College as to when the applicant’s enrolment at the college ceased, in the light of:
(a) the Applicant’s request that the enquiry be made; and or
(b) the college’s database showing that the Applicant’s enrolment was terminated before the purported certification.
(ii)The Tribunal failed to take into account, or to give due regard, to the records of Taylors college, which showed that the Applicant’s enrolment had been terminated before the purported certification.”
Under Ground 1 the applicant is asking the court to make a finding that Ms Liu was no longer an accepted student at Taylors College at the time the notice was given but, as the respondent correctly argues, this is not a matter of law, it is one of fact. Furthermore, it is a fact upon which the Tribunal has already made a finding which was open to it on the evidence. The documentation provided by the College is ambivalent. The termination and the notice were issued on the same day but there is nothing which points clearly to one being done prior to the other. As Allsop J said in NARE v Minister for Immigration & Anor [2003] FCA 554 at [10]:
“[10]What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 (Cth) (the "Act") says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court's job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to betray a failure to undertake properly the required task. This is why it was not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
It is perhaps because of the difficulty which the applicant would have in making her argument on this point that she added the secondary ground; the failure by the Tribunal to make inquiries. It is the case that the matter was raised in the applicant’s submissions to the Tribunal [CB 179]. This letter was written in response to one from the Tribunal dated 22 May 2012 in which the Tribunal stated:
· “Your representative has argued in his written submissions to the Tribunal that you were enrolled with the Oxford College from 7 March 2011 and on 2 May 2011 you were not enrolled with the Taylors College. The Tribunal considers your representative’s essential argument to be that as you were not enrolled with the Taylors College on 2 May 2011, you were not an accepted student of this education provider or provider and hence this provider’s certification dated 2 May 2011 was invalid because s.20 of the ESOS Act a provider can only certify an accepted student which you were not on 2 May 2011.
· The Tribunal disagreed with this argument at the hearing on 27 April 2012 on the basis that it received advice from Taylors College that your enrolment was terminated or cancelled on the same date when you were certified being 2 May 2011. A copy of a letter containing this advice was given to you at the hearing.”
The duty to enquire was considered by the High Court in Minister for Immigration & Anor v SZIAI (2009) ALJR 1123 at [25]:
“[25]Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.”
The extent of the duty has been further refined: Minister for Immigration v SZGUR & Another (2011) 273 ALR 223 at [23], [74]; Teuila v Minister for Immigration and Citizenship [2012] FCAFC 171 at [30]; Minister for Immigration and Citizenship v Dhanoa andAnother (2009) ALD 36 at [46-51].
It would seem clear in this case that the Tribunal did not consider that the matter was so in doubt there was any necessity to make a further enquiry of the education provider before it was able to come to a conclusion in response to the submissions of the applicant. The Tribunal also considered that making these inquiries was of no utility because it was required to accept the certificate and could not look behind it; Mo v Minister for Immigration & Anor (2009) 112 ALD 329; Lin v Minister for Immigration & Anor [2011] FMCA 329 at [86]; Hassan v Minister for Immigration & Anor [2012] FCA 816[3] in which his Honour quoted with approval at [5] from [7] of the decision in Mo:
“[7]Before considering each of these grounds in turn, it is well to make reference to the legislative background. Towards the end of 2006 there was introduced into the parliament amending legislation that would produce a significant change in the manner in which the academic progress of overseas students would be overseen. The legislation changed the wording of the standard condition 8202, amended ss 19 and 20 of the ESOS Act and s 137J of the Migration Act. There was also introduced a National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students. The National Code and the amendments to the legislation and visa conditions came into effect on 1 July 2007. The respondent tells the court that the purpose of this activity was to shift the obligation to monitor academic progress away from the Department of Immigration & Citizenship and to place responsibility on the academic providers, at the same time raising the standards of oversight and providing fairness to students through, in particular, standards 8 (Complaints and Appeals) and 10 (Monitoring Course Progress).”
[3] “Hassan”
In Hassan’s case there had been a finding of fact by the Tribunal that Mr Hassan was an accepted student at the time of certification as there was in the instant case. For these reasons I do not believe that I can provide review to the applicant on the basis of either Ground 1 or Ground 2 of the Amended Application.
Ground 4 of the Amended Application is in the following form:
“4. The Tribunal committed jurisdictional error by finding that the Applicant had breached Condition 8202
Particulars
(i)The Tribunal found that the Applicant had breached Condition 8202, in circumstances where Condition 8202(3) is invalid.
(a) Condition 8202(3) is invalid, as it is beyond the regulation making power as it is inconsistent with the Migration Act 1958.”
The scheme of Clause 8202 is that the holder of the visa must meet the requirements of sub-clause 3 and will only meet that requirement if his education provider has NOT certified him as not achieving satisfactory course attendance (8202(3)(ii)(b)). The applicant accepts the authorities which have found that a decision maker is not permitted to go behind the certification but says that these authorities render the sub-clause invalid because it is inconsistent with the statutory scheme set out in s.137L and with Regulation 2.43(2)(b)(ii)(A) prescribed for mandatory cancellation of a student visa under s.116. The applicant directs her attack at s.137L but the respondent concedes that because of the similarity of wording of s.137L(i)(a) and Regulation 2.43(2)(b)(ii)(A) as informed by s.119(1)(b)(i) he could not argue that there was validity in one method of dealing with non-compliance if there was invalidity in the other.
The applicant argues:
“[53]If a decision maker is not permitted to go behind the certification s137L(a) has no work to do in the case of a person who has their visa cancelled by force of s137J. This is because the student is unable to show that there has been no breach (as the certification is the breach).
[54]As certification is central to condition 8202(3)(b), and therefore to mandatory cancellation under s116 and r2.43(2)(b)(ii)(A), similarly, the student would not be able to show that there has been no breach of that condition once certification has occurred.
[55]The student visa holder has two choices in relation to the s20 ESOS notice: do nothing in relation to the notice, in which case the visa will be cancelled 28 days after date of that notice, by force of s137J; or report and be subject to a s119 notice to cancel the visa under s116. The validity of a regulation cannot turn on which option the student makes. Condition 8202(3)(b) is therefore invalid. The Tribunal therefore committed jurisdictional error by finding that the Applicant had not complied with her visa conditions.”
The applicant also states that the requirement in s.137L(1)(a) to satisfy the Minister that the applicant did not breach the condition is not something that the Minister is able to find if it is the certification that is the breach and the Minister cannot go behind the certificate. Given these two constraints it is impossible for the Minister to find that no breach occurred. The right to revocation is illusory because the applicant cannot satisfy the Minister that there is no breach and as a result the sub-section has no work to do because the Minister’s hands are tied and an applicant can never show that she has not complied with condition 8202.
The applicant relies heavily upon what fell from the High Court in Plaintiff M47/2012 v Director General of Security (2012) 292 ALR 243. At [71] French CJ said:
“[71]Despite the support for the validity of public interest criterion 4002 which might be derived from the decisions of the Federal Court in Sultan and Kaddari, and analogical argument which might be derived from VWOK, the relationship between public interest criterion 4002 and the provisions of ss 500-503 of the Migration Act spells invalidating inconsistency. That is primarily because the condition sufficient to support the assessment referred to in public interest criterion 4002 subsumes the disentitling national security criteria in Art 32 and Art 33(2). It is wider in scope than those criteria and sets no threshold level of threat necessary to enliven its application. The public interest criterion requires the Minister to act upon an assessment which leaves no scope for the Minister to apply the power conferred by the Act to refuse the grant of a visa relying upon those Articles. It has the result that the effective decision-making power with respect to the disentitling condition which reposes in the Minister under the Act is shifted by cl 866.225 of the Regulations into the hands of ASIO. Further, and inconsistently with the scheme for merits review provided in s 500, no merits review is available in respect of an adverse security assessment under the ASIO Act made for the purposes of public interest criterion 4002. Public interest criterion 4002 therefore negates important elements of the statutory scheme relating to decisions concerning protection visas and the application of criteria derived from Arts 32 and 33(2). It is inconsistent with that scheme. In my opinion cl 866.225 of the Regulations is invalid to the extent that it prescribes public interest criterion 4002.”
Hayne J expressed his views at [221]:
“[221]The defendants' submissions that there can be no decision to refuse to grant a protection visa relying on either Art 32 or Art 33(2) should be rejected. Section 500(1)(c) can and should be construed as having useful work to do. It follows that the prescription by cl 866.225(a) of Sched 2 to the Regulations of PIC 4002 as a criterion for the grant of a protection visa is not valid. Its making is inconsistent with the express provisions of the Act and s 31(3) does not authorise the specification of a criterion inconsistent with the Act. No party suggested that PIC 4002 could be read down.”
Crennan J considered the inconsistency at [396 – 399]:
“[396]A decision to refuse to grant a protection visa relying on PIC 4002 effectively reposes the power of determining the application for a protection visa in the hands of an officer of ASIO. The scheme under the Migration Act for refusing such an application relying on Arts 32 and 33(2) reposes the power of determining the application in the Minister personally or in the Minister's delegate.
[397]With some exceptions which are not presently relevant, an officer of ASIO is not required to state the grounds for issuing a security assessment for the purposes of the Migration Act. A decision by the Minister personally under s 502 of the Migration Act is subject to parliamentary scrutiny. A decision under s 501 of the Migration Act requires the Minister (or, in the case of a decision under s 501(1), a delegate of the Minister) to reach specific states of satisfaction as to whether the applicant for a visa "passes the character test", or whether the refusal of a visa is "in the national interest".
[398]A decision to refuse an application for a protection visa relying on PIC 4002 is subject to review under Pt 7 of the Migration Act. However, as explained above, neither the substance nor the making of the security assessment is relevantly subject to merits review. By comparison, a decision by the Minister, or the Minister's delegate, relying on Arts 32 and 33(2) (other than a decision to which a certificate under s 502 applies) is reviewable on the merits by the AAT.
[399]These differences support the plaintiff's essential contention that the prescription of PIC 4002 as a criterion for the grant of a protection visa departs from and undermines the specific provisions of the Migration Act which apply to a decision to refuse, or to cancel, a protection visa relying on Arts 32 and 33(2) of the Convention. The differences in scope between PIC 4002, s 4 of the ASIO Act and Arts 32 and 33(2) of the Convention, which were noted in submissions, do not ameliorate that inconsistency. This leads to the conclusion, which answers Question 2A, that cl 866.225 of Sched 2 to the Migration Regulations is, to the extent that it prescribes PIC 4002 as a criterion for the grant of a protection visa, beyond the power conferred by s 31(3) of the Migration Act.”
Finally, Kiefel J opined at [456 - 459]
“[456]The Migration Act contemplates that the Minister, or the Minister's delegate, may consider whether a person poses a risk to the security of Australia in determining whether to grant or to refuse a protection visa. If the Minister considers that the risk to security is unacceptable, a visa may be refused notwithstanding that a person comes within the Refugees Convention's definition of a refugee. The Minister could be informed by an assessment by ASIO. It may be noted that such an assessment is required under the Migration Act where a person is to be deported on security grounds.
[457]The Migration Act, by s 500(1)(c), provides for a review to be conducted by the AAT of a decision of this kind. This strongly implies that the grounds provided by the three Articles of the Refugees Convention, which may be relied upon by the Minister in refusing to grant a protection visa, are not criteria respecting the grant of a visa under s 65(1)(a)(ii); rather, what is contemplated is that the procedure concerning refusal on these grounds is subject to review by a tribunal chosen for that purpose.
[458]PIC 4002, if applied, would deny the Minister that consideration and it would deny the review process specified in s 500(1). It has the effect of bringing the consideration by the Minister, or the Minister's delegate, to a premature end and rendering the decision to that effect non-reviewable. The process created by PIC 4002 requires a refusal of a protection visa based entirely upon an opinion formed by officers of ASIO. But it is nowhere contemplated by the Migration Act that officers of ASIO are to have a determinative role regarding applications for visas.
[459]The ASIO Act provides for a review of an adverse security assessment by the AAT, but that review would be of an assessment of security as defined by s 4 of the ASIO Act, which, as has been noted, contemplates wider notions of security. PIC 4002 could, on one view, be read down to limit the assessment of Australia's security conformably with Arts 1F, 32 and 33(2), but this would not overcome the clear intention of the Migration Act that the Minister, or the Minister's delegate, consider for him- or herself whether a protection visa should be refused on grounds of national security. PIC 4002's statement that the non-existence of an adverse security assessment is a criterion impermissibly cuts across the process intended by the Migration Act.”
The applicant argues that the scheme of the provisions relating to the revocation of student visas effectively takes the decision out of the hands of the Minister and places it with the education provider. There is certainly some force in the applicant’s argument when one considers the use of the words “the non-citizen did not in fact breach” in s.137L. These words seem to indicate that a factual investigation should be undertaken, although one can see good reasons why it should not. Again in Hassan Cowdroy J referred approvingly to what fell from Jarrett FM in Kumar v Minister for Immigration & Anor [2011] FMCA 741 at [28 – 29]:
“[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 s 116(1) or (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 prescribed circumstance in s.116(1) that is particularly relevant in this case provides:
“Power to cancel
(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 …”
The respondent argues that the use of third parties to make non-factually reviewable determinations is common within the Migration Act. For example, skill certificates, health determination, English language competency and decisions on whether an applicant has suffered domestic violence. It would seem that the real issue is how the minister is to consider those determinations and whether, in those scenarios, merits review is available upon the decision made, not by the Minister but by the third party. Though the authorities tend to favour the validity of such clauses where validity is called into question.
Decisions relating to the cancellation of spousal visas where an applicant has claimed to be the victim of domestic violence were considered in Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30. In such cases, if the Minister is not satisfied that an applicant had suffered domestic violence, then the Minister is required by the regulations to seek the opinion of an independent expert, whose opinion is required to be taken to be correct. In turn, the independent expert is required to proceed in accordance with the requirements of procedural fairness, a lack of which will result in the Minister’s reliance on that opinion as being invalid : see Maman at [24]-[27] and [88]. The result being that judicial review is available in relation to the Minister’s decision. The validity of that scheme was not in issue in that particular case.
A similar position is taken in regards to health determinations. Tamberlin J described the structure of that scheme in Applicant Y v Minister for Immigration and Citizenship and Another (2008) 100 ALD 544 as follows (at [2]):
“Under reg 2.25A of the Regulations, when determining whether an applicant satisfies certain health criteria for the grant of a visa, the minister must seek the opinion of a medical officer of the Commonwealth (MOC) on whether, inter alia, the applicant satisfies the criteria contained in cl 4007(1)(c). Under reg 2.25A(3) of the Regulations, the minister must take the opinion of the MOC to be correct for the purpose of deciding whether a person meets the requirements of cl 4007(1)(c).”
In considering the requirement to take the MOC decision as correct, Tamberlin J approved of the test laid down by French, North and Merkel JJ. in Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 at [49] that:
“The minister is required by reg 2.25A(3) to take the opinion to be “correct”. That is subject to three qualifications:
(1) The opinion must be the opinion of the medical officer “on a matter referred to in subreg (1) or (2)”. The matter referred to in reg 2.25A(1) is whether a person meets the requirements of the relevant paragraph of Schedule 4.
(2) The minister is to take the opinion as correct for the purposes of deciding whether a person meets a requirement or satisfies a criterion.
(3) The opinion must address satisfaction of the requirements at the time of the minister's decision.”
Though Tamberlin J clarified the time requirement, opining at [19]-[20]:
“[19] In practical terms, the requirement in Seligman (at [49]) that the MOC’s opinion must address satisfaction of relevant requirements as at the time of the minister’s decision cannot be read literally. For example, where the tribunal is reviewing the minister’s decision, it cannot be reasonably suggested that the tribunal should be required to have an MOC’s opinion as at the same date as its decision. Generally, the tribunal will reserve its decision at the end of the hearing and it should be entitled to rely on an opinion which is current and reliable at the date of the hearing, and should not be required to seek or consider a fresh opinion bearing the same date as that on which it eventually hands down its decision.
[20]However, in addressing this question, the tribunal cannot generally disregard a substantial lapse in time between the issue of an MOC’s report and the making of its decision. In some cases, for example, it may be that an MOC’s opinion expressed many years before the tribunal’s decision, on its face, by reason of the lapse of time and other considerations, will necessitate further investigation as to that opinion’s relevance, currency and reliability. Whether further investigation is required will depend on an assessment of all the circumstances of the case, including the amount of time that has elapsed between the issue of the MOC’s report and the tribunal’s decision, any evidence of change (and, in particular, improvements) in the applicant’s health, and the degree to which any other medical opinions demonstrate a lack of currency and reliability in the opinion of the MOC.”
Thus it was held that jurisdictional error may be found in health determination cases on the basis that the Minister relies on a MOC opinion that is not current at the time the decision is made. In effect, the Minister has work to do, and cannot simply take the MOC opinion on its face.
These authorities may be contrasted with the current authorities in relation to language competency. In the case of Ghori v Minister for Immigration and Citizenship [2011] FCA 759 by Perram J. the validity of reg.1.15C was challenged on the basis that it involved delegation. It was contended that the function of determining whether an applicant spoke competent English was entrusted to the institution administering the test, in that case the International English Language Testing System (IELTS). Further, it was argued that that decision of the IELTS was not subject to judicial review and that as a consequence the regulation was not authorised by the Act because it was not “necessary or convenient to be prescribed for the carrying out or giving effect to the Act”. Perram J noted at [31]-[32]:
“[31] Ms Mitchelmore, in her careful and concise submission, pointed to the decision of Hely J in Rahman v Minister for Immigration and Multicultural Affairs [2001] FCA 1236at [11]where his Honour said with characteristic clarity:
[11] Section 4 of the Migration Act 1958 (Cth) (the Act) provides that the object of the Act is to regulate in the national interest, the coming into, and presence in, Australia of non-citizens. To advance its object, the Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that the Act be the only source of the right of non-citizens to so enter or remain. Section 31(1) provides that there are to be prescribed classes of visas. Section 31(3) provides that the Regulations may prescribe criteria for a visa or visas of a specified class. Section 504 is the regulation making power. Relevantly it is in the familiar form in which the Governor-General is authorised to make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. [Emphasis added.]
[32]Consequently the question is not, as Ms Edwards submitted, whether the regulation is necessary or convenient. Instead, it is whether reg 1.15C sets out a criteria for a prescribed class of visa. The visa in question is of a class which is prescribed; the only question then is whether reg 1.15C is a criterion. In my opinion, plainly it is. Consequently, the regulation is valid.”
But went on to consider the question of the validity of the delegation and opined at [33] –[34]:
“[33] Even if that were not so, however, I would not have accepted the premise upon which the argument rested, viz, the perceived delegation to the IELTS invigilator. Although it is superficially attractive to describe what occurs under reg 1.15C as a delegation that is not, on closer inspection, what occurs. Regulation 1.15C requires the minister, and the minister alone, to form an opinion. That opinion is as to whether an applicant has achieved the requisite test results. There are no particular difficulties with making the formation of an opinion of the minister contingent on some third party action. Administrative decision-makers, for example, frequently act on third party certification such as that constituted by university degrees, medical certificates and drivers licences.
[34]In saying that, of course, care should be taken to distinguish the different situation obtaining where a decision-maker, entrusted with a particular function by statute, seeks to have that function performed by a third party. The issues arising in such a situation may be quite complex. But where, as here, the decision resides with the decision-maker, no particular difficulties arise.”
Perram J plainly states that the formation of the Minister’s opinion may, without difficulty, be contingent on third party action. Whilst the presently impugned scheme relates to the cancellation of a visa as opposed to the grant of a visa and the scheme to revoke that cancellation is unique in its importation of a matter of fact clause in s.137L, it functions in the same manner. The existence of the certificate results in the cancellation of a student’s visa unless the non-compliance was due to exceptional circumstances that were beyond the visa holder’s control. The Minister requires the existence of the certificate and the lack of exceptional circumstances beyond the visa holder’s in order to cancel the visa. The Minister is not, as in M47/2012 left with nothing to do.
Indeed, so much fell from the detailed examination of the revocation scheme undertaken by Burnett FM, as he then was, in Patel v Minister for Immigration & Anor [2011] FMCA 112, whose approach to condition 8202 was adopted on appeal by Collier J: Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384 at [53], though neither of these cases were relied on in submissions made before me. That case involved the issuance of a certificate by an unauthorised person which rendered the certificate invalid in fact, but which on its face was valid. The reasoning of their Honours clearly shows that the regulatory scheme takes the decision in relation to breach of the condition out of the Minister’s hands and places it with the education provider. However, their Honours were satisfied that internal review mechanisms were available to students and that even if those internal measures were not performed in accordance with the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007, as was required, this could in turn form the basis of a claim that the non-compliance (as established even by an invalid certificate) was as a result exceptional circumstances beyond the control of the visa holder: see particularly Burnett FM [51]-[56].
Burnett FM went on to conclude in relation to the condition 8202 issue at [84]-[85] that:
“The decision to issue the certificate is one as defined in s.4 of the Judicial Review Act (Q) (1991). The relevant decision was not one made by the Minister pursuant to his powers under the Migration Act and not a Migration Review Tribunal reviewable decision; s.338 Migration Act.
In any event, the answer to any question concerning delegations is to be found in the Minister’s powers. The Minister’s powers to cancel a visa under s.116(1)(b) arise once the Minister is satisfied that a relevant certificate as been issued by the education provider. The Minister (and the Tribunal) is not required to investigate the issue of delegation. Provided the certificate appears on its face to be valid that is sufficient for the Minister and the Tribunal to be satisfied that there has been no breach. Given the facts as I have found them I consider there would have been nothing to place the Minister on notice as to the invalidity of the certificate. Accordingly irrespective of the validity of the s.20 notice, given it was on its face valid, the notice’s invalidity would not invalidate the decision made to cancel the visa under s.116(1) of the Act; Minister for Immigration and Multicultural Affairs v ZHOU [2006] FCAFC 96; (2006) 152 FCR 115 at [39] – [42].”
Collier J also upheld the statutory scheme, and opined at [56] to [58]:
“The appellant’s argument concerning the undesirable policy implications of the Minister’s decision being in fact based on a certification by an unauthorised person at the relevant education provider potentially raises concerns as to processes in education providers. However the structure of the Migration Act means that, as found by the Federal Magistrate, the decision the subject of review by the Tribunal is the decision of the Minister as to whether he was satisfied that there had been a breach of visa condition 8202. In this case the Federal Magistrate found that the Minister was so satisfied. While Ms Issar was not an authorised delegate of Griffith University there was nothing on the face of the documentation to found any concern by the Minister that there had not been a breach of condition 8202 as the documentation stated. Indeed, the documentation was comprehensive and unequivocal, was clearly issued under the aegis of an office of the University, and was signed “for” the Pro Vice Chancellor who is a senior academic officer.
This is not a case where the underlying decision of the University is susceptible to review by the Tribunal, and the Minister is required to go behind the certificate, or be on notice as to the nature of delegations and proper lines of authority within the education provider (compare by way of analogy comments of Davies J in Manokian v Minister for Immigration and Ethnic Affairs (1997) 48 ALD 632 at p 633; Moore J in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333; [2004] 141 FCR 448 at [30]; and Blanchard, McGrath and William Young JJ in the Supreme Court of New Zealand in McNamara v Auckland City Council [2012] NZSC 34 at [155]-[156]).
Compliance with the National Code is required of the education providers, not the Minister. Further, Standard 8 of the National Code requires education providers to have an internal complaints handling and appeals process for overseas students, and education providers are also required to advise students of their right to access an external complaint and appeals process if they are not satisfied with an internal complaint process or outcome. It is this process with which the student must engage if he or she has a complaint about the policies and practices of the education provider, including the manner in which certificates are notified to the Secretary.”
This decision is binding upon me and appears to dispose of the argument raised in ground 4 of the application. I am satisfied that their Honours were correct in their application of the statutory scheme and that the Minister is capable of considering the certificate in the same manner as a language competency result as outlined by Perram J. The example was used that if a student is issued with a certificate, has his visa cancelled automatically and applies for revocation on the basis that the certificate applies not to him but to another person of the same name then the first part of the requirement on the Minister will not allow this information to come out because the Minister will only look at the certificate and say that it is proof of her non-compliance. The applicant will have to fall back on the second part at the breach due to exceptional circumstances beyond her control. Whilst this seems not a particular satisfactory way to go, it does not mean that s.137L(1)(a) has no work to do at all and it preserves the formula whereby the responsibility for determining a student’s progress or attendance is left with the educational institutional as was intended by the reforms.
It follows that the analogy of this case with M47/2012 cannot be sustained. In that case the major vice of the Regulation PIC4002 was that it was inconsistent with the scheme under the Act and had the effect of taking away from the Minister the power to make a decision in accordance with the Act. The Regulation was “wagging” the Act. The applicant has not referred me to any part of the Migration Act whose operation is stymied by the effect of a certificate under s.20 of the ESOS Act. Nor is the applicant denied effective review because of the existence of criterion (b) in s.137L(1)(b) and criterion B in Regulation 2.43(2)(b)(ii)(B).
In these circumstances I am unable to provide the applicant with review of the decision. The provision is not invalid. The application must be dismissed. The applicant must pay the respondents’ costs assessed in the sum of $6,471.00.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 19 April 2013
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