Maharjan v Minister for Immigration
[2005] FMCA 1442
•26 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAHARJAN v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1442 |
| MIGRATION – MRT decision – mandatory cancellation of student visa affirmed by Tribunal – effect of invalid s.20 notice under ESOS Act – misleading notice preceding delegate’s decision – failure by delegate to follow procedures – did not affect Tribunal’s decision – relief refused. |
Education Services for Overseas Students Act 2000 (Cth), s.20
Migration Act 1958 (Cth), ss.116, 116(1), 116(1)(b), 116(3), 119, 119(1)(a), 119(1)(b)(ii), 121(3), 137J, 137J(2), 137K, 349(1), 483A
Migration Regulations 1994 (Cth), reg.2.43, 2.43(2), 2.43(2)(b), Sch.8 item 8202, 8202(3), 8202(3)(a), 8202(3)(b)
Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62
Attorney‑General for the State of New South Wales v Quin (1990) 170 CLR 1
Bao v Minister for Immigration [2004] FMCA 1044
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58
Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333
Morsed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 193
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238
Uddin v Minister for Immigration [2005] FMCA 841
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
| Applicant: | DHARMA RATNA MAHARJAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG2274 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 26 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the First Respondent: | Mr D Jordan |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Migration Review Tribunal be included as second respondent.
Application dismissed.
Applicant to pay the first respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2274 of 2004
| DHARMA RATNA MAHARJAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Act”) concerning a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 23 June 2004. The Tribunal affirmed a decision of a delegate taken under s.116(1)(b) and (3) of the Act and reg.2.43(2)(b) of the Migration Regulations 1994 (Cth) (“the Regulations”) to cancel a Student (Temporary) (Class TU) subclass 572 (Vocational Education and Training Sector) visa.
The visa had been granted to the applicant on 24 December 2001, and would have allowed the applicant until 4 March 2004 to pursue a course of study with an education provider known as Central College in Sydney (“the College”). The cancellation took effect on the last day of the visa’s currency and that date has now long passed, but the cancellation may affect the applicant’s eligibility for further visas to continue other study in Australia, including study which he has more recently undertaken at Ballarat University.
The relevant provisions of s.116 and related regulations governing the decisions of the delegate and Tribunal have been well traversed in many decisions of the Federal Court, including those to which I shall refer below. It is now clear that cancellation is mandatory for a visa of the present class, if a decision‑maker is satisfied that the student has failed to comply with a condition found in Sch 8 item 8202. It is unnecessary for me again to recite and explain the provisions having this effect.
The parts of condition 8202 which are relevant to the present case were:
(3)A holder meets the requirements of this subclause if:
(a)in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i)for a course that runs for less than a semester – for the course; or
(ii)for a course that runs for at least a semester – for each term and semester of the course; and
(d)in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i)for a course that runs for less than a semester – for the course; or
(ii)for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.
The present applicant had satisfactory progress in his course at the College until his final term in 2003 in term 4, when due to illness he did not attend his examinations in any of his four subjects and his results were recorded as failures. He was offered an opportunity to re‑sit his exams but did not take up that opportunity. Instead, he enrolled at a different university for a different course.
The College on 24 February 2004 gave him a notice purporting to be under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”). The body of the notice said:
This Notice is sent to you pursuant to section 20 of the Education Services for Overseas Students Act 2000 as you have breached a condition of your student visa relating to satisfactory academic performance in the course in which you have been enrolled at this institution.
Particulars of breach:
lack of academic progress
Pursuant to section 137J of the Migration Act 1958, your student visa will cease on the 28th day after the date of this notice, unless you report to DIMIA by that time. The day count begins on the first day after the date of this notice and ends on the 28th day thereafter.
You must report personally to a compliance officer at the following Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) office: …
Counsel for the Minister has not disputed that this notice was invalid because it too restrictively identified where the applicant was required to report (see Uddin v Minister for Immigration [2005] FMCA 841). Counsel for the applicant argued that it was also invalid due to lack of sufficient particulars, and due to it being given less than 28 days before the visa was due to expire. I need not address these two contentions, since I accept the Minister’s concession. It follows that I accept that the s.20 notice was legally ineffective and was incapable of giving rise to an automatic cancellation under the provisions of s.137J(2).
The notice also contained a potentially misleading suggestion to the applicant that:
If you report to DIMIA as required under this notice, the automatic cancellation of your student visa will not proceed, but a decision will then be made whether or not to cancel your visa. Your student visa will not be cancelled if you can show that no breach occurred.
The reference to “a decision will be made” might appear misleadingly to suggest that extenuating circumstances could be taken into account by DIMIA when exercising a discretionary power of cancellation. Certainly, the notice failed clearly to inform the applicant that, while exceptional circumstances could be taken into account in a decision whether to revoke an automatic cancellation, no such circumstances could be taken into account if the applicant attended at DIMIA and became subject to mandatory cancellation under s.116(1) and (3).
I have in other cases commented on the procedures followed in relation to mandatory cancellation under s.116 after the giving of a s.20 notice as being anomalous and unfair (c.f. Bao v Minister for Immigration [2004] FMCA 1044 at [24]). Recently a Full Court in Morsed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 193 (“Morsed”) said:
[21] Therefore, the only way a holder of a student visa who has breached condition 8201, but whose breach was due to exceptional circumstances beyond their control, can avoid having their visa cancelled is to not comply with the s 20 notice.
[22] Given this, we consider that the statement in the s 20 notice, extracted above, is misleading. In the event that a person has breached condition 8202, and reports to DIMIA as requested, it is incorrect to state that “a decision will then be made whether or not to cancel your visa”. This may imply some sort of discretion on the part of the officer, particularly given that the notice asks the recipient to “explain” their breach. It implies that it is possible that the visa will not be cancelled if the breach is adequately explained. However, the true position is that the Minister is obliged under s 116 to cancel the visa if satisfied there has been a breach.
[23] Furthermore, the s 20 notice may be misleading by omission. The notice states that the visa will not be cancelled “if you can show that no breach occurred”. It does not go on to say the corollary of that, which is that a visa will be cancelled if a breach did occur, (or, probably more accurately, if it cannot be shown that no breach occurred).
[24] For those visa‑holders who have breached condition 8202, but may have exceptional circumstances beyond their control to explain that breach, the notice creates a trap. It encourages the visa‑holder to explain their circumstances to avoid automatic cancellation. However, it does not tell them that in doing so, and in admitting a breach, they will then have their visa cancelled pursuant to s 116.
[25] In fact, if a person’s breach was due to exceptional circumstances beyond their control, they would be best served by not complying with the s 20 notice, having their visa automatically cancelled under s 137J, and then applying for revocation under s 137K. If revocation is granted, their breach is then “immunised” from being used as a basis for cancelling their visa under s 116.
[26] We would urge the department to give careful consideration to modifying the standard form of a s 20 notice in order to avoid the difficulties outlined above.
Counsel for the applicant sought to draw upon the invalidity of the present s.20 notice and its misleading nature, and argued that these aspects resulted in a consequential invalidity of the delegate’s decision under s.116. However, I accept the Minister’s submissions that this point was decided against the applicant by a majority in the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333 (“Yu”). Allsop J, with whom Tamberlin J agreed, said:
[37] It was submitted on behalf of the respondent that the scheme provided for under subdivision GB of the Migration Act was effectively a code for the use of powers to cancel a visa of a student under s 116 of the Migration Act. Thus, it was said that failure to comply with condition 8202 could lead to visa cancellation only in a circumstance in which a student’s education provider has issued a notice under s 20 of the ESOS Act.
[38] Whilst there is a coherent body of regulation under subdivision GB of the Migration Act when examined in the light of the terms of the ESOS Act, I do not see any express or implied statutory limitation on the circumstances in which s 116 of the Migration Act can be invoked. Subdivision GB comes into operation if a notice is sent to a non‑citizen under s 20. Section 116 of the Migration Act is not so limited.
[39] Nor do I see condition 8202 as limited by reference to certification expressly under s 20. Condition 8202 (3) is couched in terms of meeting the requirements of the condition by, amongst other ways, the visa holder achieving a result that is certified as satisfactory. This contemplates an act of certifying that is positive. Section 20 of the ESOS Act only contemplates the opposite: a notice of breach, that is certification of a result that is unsatisfactory.
[40] In my view, the ESOS Act does not limit the circumstances under which s 116 might operate where there has been a failure to comply with condition 8202; nor does it confine the operation of condition 8202. If a breach of condition 8202, or some part of it, was only intended to arise upon giving of a notice under s 20 of the ESOS Act that would have been simple enough to say.
In my opinion, it is clear from Yu and from Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 (“Tian”) that a delegate, and on review the Tribunal, has the s.116(1) power regardless of whether procedures under the ESOS Act have been followed, either validly, or invalidly, or not at all.
Furthermore, as a result of s.116(3) and reg.2.43 and the wording of condition 8202, the decision‑maker is bound to exercise the power to cancel unless he or she has evidence from the education provider satisfying the terms of condition 8202(3)(b). As was said in Tian’s case:
[55] A visa holder will comply with Condition 8202(3) if the Minister is satisfied of the matters contained in subclause (3)(a). The visa holder will meet the requirements of Condition 8202(3)(b) if the holder achieves an academic result that is certified by the education provider to be at least satisfactory in the circumstances referred to. The Minister does not have to be satisfied that the holder has achieved an academic result that is satisfactory or at least satisfactory. The condition is met if the education provider has certified that the holder has achieved an academic result that is at least satisfactory. There is either certification or not. If there is a certificate in the terms of the condition the Minister is not obliged or, indeed, entitled to go behind the certification. The responsibility to provide the certificate is upon the education provider. If the education provider so certifies that is an end to the inquiry under Condition 8202(3)(b).
[56] On the other hand, if there is no certificate, compliance with Condition 8202 has not been achieved.
…
[66] Section 116(3) does not permit the Minister to exercise any discretion at all. If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the prescribed circumstances referred to in s 116(3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa.
Counsel for the applicant in the present case has not sought to give the statutory provisions governing the present decision of the Tribunal any different effect. He has also accepted that on the evidence that was before the Tribunal it was open to the Tribunal to find that there was non‑compliance with condition 8208(3)(b) due to the absence of the requisite certification. He has not identified in the reasoning given by the Tribunal any misapprehension as to the relevant evidence or the law, except in one respect to which I shall refer below.
In my opinion, these concessions were correctly made and the Tribunal’s reasons show that it asked itself the correct question in relation to the evidence before it. It said:
42. The Tribunal is satisfied that the education provider has not provided certification that the review applicant’s academic results for term 4, 2003 were at least satisfactory. The education provider specifically stated that the review applicant failed all 4 subjects, 2 of which were being taken for the second time.
43. On this basis, the Tribunal finds that the review applicant has not complied with paragraph 8202(3)(b). The Tribunal accordingly finds that the review applicant has breached condition 8202 of his student visa granted on 24 December 2001. The Tribunal finds that the review applicant breached section 116(1)(b) of the Act, and that grounds for the mandatory cancellation of the visa in accordance with section 116(3) and regulation 2.43(2)(b) have been established.
Counsel for the applicant argued, however, that the Tribunal correctly held at [10] of its reasons:
10. Following the proper procedure is therefore an essential precondition to the exercise of the cancellation power. As the Tribunal may only exercise the same powers and discretion conferred on the primary decision‑maker (subsection 349(1) of the Act), it follows that the Tribunal has no power to affirm a cancellation where the proper cancellation procedure has not been followed. Nor does the legislation allow for the Tribunal to ‘cure’ a defect in the notification procedures.
He then argued that the Tribunal reached incorrect conclusions as to whether there was compliance by the delegate with proper cancellation procedures. The Tribunal said concerning this:
31. The Tribunal has considered the evidence relating to the notification procedure. Although the notice of intention to cancel the visa referred in broad terms to possible grounds for cancellation on the basis that the review applicant failed to maintain 80% attendance and/or satisfactory academic progress, the Tribunal is satisfied that at the interview with the delegate the specific grounds for cancellation (the review applicant’s failure to achieve satisfactory academic results in term 4, 2003) were put before the review applicant and reasonably explained.
Counsel for the applicant argued that this conclusion was incorrect, since several procedures had not been complied with by the delegate. First, the s.119 notice given to the applicant on 27 February 2004 which appointed an interview for 4 March 2004 did not contain sufficient particulars complying with the requirements of s.119(1)(a). Counsel argued that particulars sufficiently identifying the alleged non‑attendances or unsatisfactory results were never given to the applicant at a time allowing him a reasonable opportunity to respond in accordance with the provisions of s.121(3).
The written s.119 notice given to the applicant described the alleged non‑compliance only in the following language:
Breach 8202 – Your education provider has advised that you have failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of your course.
Shortly prior to the interview, the delegate received information from the College which identified the applicant’s absence from his final exams in term 4, 2003 as the reason for the College’s opinion that he had not “made satisfactory academic progress” in that term. It appears that this information may have been put to the applicant in the course of the interview, and he then sought to explain his absence from the exams and decision not to re‑sit the exams. A decision to cancel the visa was then made at the end of the interview.
The second argued defect in the delegate’s procedures arose from the terms of the notice under s.119. Counsel argued that this misleadingly suggested to the applicant that the delegate would consider, not only whether there were “grounds for cancellation”, but also “why your visa should not be cancelled”. By listing “factors the delegate may take into consideration” the notice suggested that such things as hardship and prior behaviour could be taken into account. As the cases I have referred to above make it clear, this is not a correct view of the powers of the decision‑maker. Counsel for the applicant argued that these misleading statements in the notice gave rise to its invalidity, presumably upon some basis of implication in s.119.
I can see several difficulties facing this submission. Section 119(1)(b)(ii) expressly requires the Minister to invite the holder to show that “there is a reason why it should not be cancelled” even if a ground “exists”. The duty to invite this would seem to apply, even if the invitation concerned a proposed exercise of s.116(1) in circumstances where discretionary consideration would be excluded by s.116(3).
Moreover, it is usually considered that a decision-maker cannot be precluded from a duty to apply the law correctly by making incorrect statements as to the scope of his or her powers (c.f. Attorney‑General for NSW v Quin (1990) 170 CLR 1 at 17).
Counsel for the Minister argued that the notice was not misleading because it contained on page 1 a footnote concerning cancellation for breach of condition 8202, which said:
The visa holder’s visa must be cancelled if the prescribed circumstances exist – refer to reverse of this page.
However, this is not explained on the “reverse” but, rather, there is a description of exculpatory “factors the delegate may take into consideration in making their decision whether to cancel your visa”. No suggestion is made on the “reverse” that they are inapplicable where cancellation for breach of condition 8202 is contemplated.
The third argued defect in the procedures followed by the delegate was the Department’s omission, either in the s.119 notice or elsewhere, to notify the applicant of the benefits of his not attending at the interview which were pointed out by their Honours in Morsed above. Counsel argued that this had particular pertinence in the present situation, where the applicant’s interview had been appointed for the last day of his visa and, if he had not attended, his visa would have expired by effluxion of time rather than under either an automatic or mandatory cancellation.
The fourth argued defect in the proceedings of the delegate was the failure of the delegate properly to give particulars to the applicant of a communication from the College received by facsimile on 1 March 2004. This explained the applicant’s recorded failure in his term 4 subjects. Counsel argued that the applicant was not shown this and allowed a reasonable time to comment before the decision was made. The decision to cancel appears to have been made at the end of the interview, although the exact timing of the events on 4 March 2004 is not clear on the evidence before me.
Counsel for the Minister did not concede any of the defects I have referred to above, nor did he accept the criticisms of the misleading effects of the s.20 and s.119 notices. He pointed to the absence of evidence expressly from the applicant as to having been misled. However, I doubt whether such evidence would be necessary if these matters went to the validity of the notices in the form served. Moreover, the Court may be able to infer a misleading effect from the documents and circumstances shown in the material in evidence. It is clear that, in fact, the applicant was induced to attend the interview, and that he thought he could explain his admitted breach of condition 8202 so as to avoid a cancellation.
However, in my opinion, I do not need to make rulings upon any of the defects argued for the applicant, since there is authority that they would not have deprived the Tribunal of its jurisdiction to review the cancellation decision. These authorities emphasise that jurisdiction as a merits review tribunal gives it the duty to draw its own conclusion on the evidence before it as to whether non‑compliance with condition 8202 was established. As the Tribunal’s reasoning shows, the evidence pointed to a state of dissatisfaction by the education provider in relation to the academic results of the applicant during term 4 in 2003, and did not contain a certificate of satisfaction. No attack has been made on the reasoning and procedures followed by the Tribunal when reaching that conclusion. In this situation, it is irrelevant whether the proceedings of the delegate were flawed as argued.
The authorities establishing these propositions emerged from the Full Court subsequent to the present decision of this Tribunal. This accounts for its incorrect opinion, which I have extracted above, that it was obliged to satisfy itself that the delegate “followed proper procedure” as “an essential precondition to the exercise of the cancellation power”.
In Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 (“Zubair”) the Court considered the position of the Tribunal when reviewing a s.116 decision similar to the present, and concluded:
[32] It should therefore be concluded that the Tribunal did have power to review the delegate’s decision. The Tribunal was, in consequence, able to “cure” the defect in the delegate’s decision: see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116. Because of our conclusion it is unnecessary to enter upon the question whether a direct challenge could have been made to the delegate’s decision in judicial review proceedings in disregard of the procedure for Tribunal review: cf Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.
In Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 (“Ahmed”), the Court said “we have come to the same conclusion” as Zubair albeit with different “shades of reasoning” (see [36], [38‑39], [41] and [43]).
Counsel for the applicant argued that these cases were inconsistent with High Court authority including Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62. However, he accepted that I was bound to apply them, and I do not consider it necessary to enter into his arguments. Zubair and Ahmed clearly stand as authority against the applicant’s contentions in relation to the procedural irregularities argued above, including lack of particulars and notice of evidence. In my opinion, they also establish a broader proposition that it is irrelevant to the Tribunal’s review of a s.116 decision whether the delegate’s s.119 notice was invalid for any reason. I cannot see a distinction between the grounds of invalidity which were found to be irrelevant in those cases, and the invalidity of the delegate’s decision which counsel argued had resulted in the present case from a misleading notice under s.119 or from an invalid and misleading s.20 notice.
For the above reasons, I do not consider that any of the grounds raised by the applicant’s further amended application filed in Court today have been made out. I am not persuaded that the Tribunal failed to exercise its jurisdiction when reaching its decision to affirm the decision of the delegate to cancel the applicant’s visa.
I must therefore dismiss the application.
RECORDED : NOT TRANSCRIBED
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 17 October 2005
2
11
0