Majumder v Minister for Immigration
[2016] FCCA 1889
•29 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAJUMDER v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1889 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) – whether Tribunal misconstrued the expression “complied substantially” with condition attached to previously held substantive visa – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth), Schedule 2, cl.572.235, 573.235 |
| Cases cited: Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007 Jayasekara v Minister for Immigration &Multicultural & Indigenous Affairs [2006] FCAFC 167; (2006) 156 FCR 199 Kim v Witton (1995) 59 FCR 258 Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578 Singh v Minister for Immigration & Anor [2011] FMCA 972 Minister for Immigration & Multicultural Affairs v Modi [2001] FCA 1656; (2001) 116 FCR 496 Mohammed v Minister for Immigration & Anor [2015] FCCA 1282 Mohammed v Minister for Immigration and Border Protection [2015] FCA 1060 |
| Applicant: | KAMRUL HASAN IMAN MAJUMDER |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE REVIEW TRIBUNAL |
| File Number: | SYG 867 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 10 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Lawyers |
| Solicitors for the Respondents: | Ms L Buchanan of Australian Government Solicitor |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 867 of 2014
| KAMRUL HASAN IMAN MAJUMDER |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The issue that arises in this application for judicial review is whether the second respondent (Tribunal) misconstrued the expression “complied substantially” which appears in cl.573.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
Circumstances out of which issue arises
On 3 March 2013 the applicant applied for a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa (Student visa). To have been entitled to the grant of a Student visa, the applicant had to satisfy, among other things, cl.573.235 of Schedule 2 to the Regulations. That clause required that if “the application was made in Australia the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa”.
At the time the applicant applied for the Student visa, the applicant held a Student visa that had been granted to him on 30 October 2011 (earlier Student visa), but which was due to expire on 15 March 2013. The earlier Student visa was subject to, among other things, condition 8202(3) of Schedule 8 to the Regulations, which, relevantly, provided as follows:
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 . . .
On 2 November 2012 the applicant’s education provider reported the applicant was not achieving satisfactory course progress in relation the Graduate Diploma of Commerce for which the applicant was then enrolled. On 8 November 2012 a delegate of the first respondent (Minister) issued a notice of intention to consider cancellation of the earlier Student visa. On 6 February 2013 the delegate notified the applicant the delegate would not cancel the earlier Student visa because the delegate was satisfied the applicant was affected by exceptional circumstances that were beyond his control.[1]
[1] CB82-83
Although a delegate of the Minister had decided not to cancel the earlier Student visa, the delegate who considered the applicant’s application for a Student visa decided that the applicant’s education provider’s certification of unsatisfactory course progress constituted a substantial non-compliance with condition 8202 of Schedule 8 to the Regulations.[2] The delegate, therefore, refused to grant a Student visa to the applicant because the delegate was not satisfied the applicant had complied with cl.573.235 of Schedule 2 to the Regulations. The Tribunal affirmed the delegate’s decision.
[2] CB101-105
The Tribunal referred to a number of cases which have considered the meaning of “complied substantially with a condition”.[3] The Tribunal stated those principles to be as follows:
a)whether an applicant complies substantially with a visa condition is a question of fact which must be determined having regard to the particular circumstances of the case;[4]
b)such circumstances could include the nature of the breach of the condition, the significance of the breach, particularly having regard to the purposes for which the visa was granted, whether the applicant deliberately flouted the condition, and whether the applicant failed to appreciate he or she was in breach of the condition, and the matters that led to the applicant’s being unaware;[5]
c)there is no rigid test, however, and the considerations to which the Tribunal referred should not be regarded as exhaustive, or as elevated to the status of relevant considerations in every case;[6]
d)there are some conditions, however, to which the notion of “substantial compliance” has no logical application; and those are conditions which either can or cannot be satisfied;[7] and
e)condition 8020(3) of Schedule 8 to the Regulations was a condition to which the notion of “substantial compliance” has no logical application.[8]
[3] CB172, [9]-[12]
[4] CB172, [9] referring to Kim v Witton (1995) 59 FCR 258 at 271
[5] CB172, [9] referring to Kim v Witton (1995) 59 FCR 258
[6] CB172, [10] referring to Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578 and Minister for Immigration & Multicultural Affairs v Modi [2001] FCA 1656; (2001) 116 FCR 496
[7] CB172, [11] referring to Jayasekara v Minister for Immigration &Multicultural & Indigenous Affairs [2006] FCAFC 167; (2006) 156 FCR 199
[8] CB172, [12] referring to Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007 and Singh v Minister for Immigration & Anor [2011] FMCA 972
Submissions
Mr Jones, who appeared for the applicant, accepted the Tribunal applied the construction of “substantial compliance” that the Federal Court in Casse v Minister for Immigration, Multicultural Affairs and Citizenship[9] placed on the expression “substantial compliance” that appeared in the similarly worded cl.572.235 of Schedule 2 to the Regulations, and that I was bound to follow Casse. Mr Jones submitted, however, that the Federal Court’s construction of “substantial compliance” was incorrect. Mr Jones informed me that the question of the proper construction of that expression (as it appears in the similarly worded cl.572.235) was to be argued in an appeal that had been brought against the judgment of this Court in Mohammed v Minister for Immigration & Anor.[10] At the time of the hearing before me, I was informed that the matter was to be heard by Flick J. Although I heard some submissions from Mr Jones, I reserved my judgment but indicated I would not give judgment until after Flick J delivered judgment in Mohammed. Although I made no formal direction, Ms Buchanan, who appeared for the Minister, said she would forward Flick J’s judgment after his Honour were to deliver it. I left it open for the parties to agree to make further submissions after Flick J were to hand down judgment in Mohammed if they so chose.
[9] [2013] FCA 1007
[10] [2015] FCCA 1282
Flick J delivered judgment in Mohammed v Minister for Immigration and Border Protection on 15 October 2015.[11] Ms Buchanan arranged for his Honour’s judgment to be delivered to my chambers. Neither Mr Jones nor Ms Buchanan have informed my chambers that they wish to make any further submissions in the matter, and I have assumed that neither party wishes to make any such submissions.
[11] [2015] FCA 1060
The decision in Mohammed
As is the case before me, the education provider of the appellant in Mohammed certified the appellant had not achieved satisfactory course progress. A delegate of the Minister exercised the power conferred by s.116 of the Migration Act 1958 (Cth) not to cancel the visa the appellant held. A delegate of the Minister, however, and the Tribunal held that, because the education provider had certified the appellant had not achieved satisfactory course progress, the appellant had not substantially complied with condition 8020(3) of Schedule 8 to the Regulations and, hence, he could not satisfy cl.572.235 of Schedule 2 to the Regulations.
It was submitted on behalf of the appellant that cl.572.235 of Schedule 2 to the Regulations should be construed in a manner which avoided the very real potential for condition 8020(3) to work unfairness to a student. Flick J referred to a number of cases which recognised that giving effect to the natural and ordinary meaning of the words of cl.572.235 of Schedule 2 to the Regulations could potentially work unfairness. His Honour held, however, that “none of the decisions relied upon provide any reason . . . to construe cl 572.235 in any manner other than that which is conveyed by the natural and ordinary meaning of the words employed”.[12] His Honour said that:[13]
condition 8020(3) – as previously expressed and as now expressed – does not permit of any qualification which allows recourse to the concept of “substantial compliance” for the purposes of cl 572.235…
[12] [2015] FCA 1060 at [16]
[13] [2015] FCA 1060 at [16]
Conclusion and disposition
It follows that the Tribunal did not apply an incorrect construction of cl.573.235 of Schedule 2 to the Regulation when affirming the delegate’s decision not to grant the applicant a Student visa. Condition 8020(3) of Schedule 8 to the Regulations is a condition to which “substantial compliance” has no logical application, it being a condition which either can or cannot be satisfied, but which is incapable of substantially being complied with. Because the applicant’s education provider certified the applicant was not achieving satisfactory course progress, the applicant did not comply with condition 8020(3). That means the applicant did not satisfy cl.573.235 of Schedule 2 to the Regulations.
I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as second respondent.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 29 July 2016
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