Patel v Minister for Immigration and Citizenship and Anor

[2013] HCATrans 240

[2013] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B52 of 2012

B e t w e e n -

CHANDRAKANT BHAGABHAI PATEL

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 11 OCTOBER 2013, AT 11.23 AM

Copyright in the High Court of Australia

MR L. BOCCABELLA:   May it please the Court, I appear for the applicant with my learned friend, MR S.R. GRANT.  (instructed by AJ Torbey & Associates)

MR S.B. LLOYD, SC:   May it please the Court, I appear with my learned friend, MR P.G. BICKFORD, for the first respondent.  (instructed by Clayton Utz Lawyers)

MR BOCCABELLA:   There is a submitting appearance for the second respondent.

FRENCH CJ:   Yes, thank you.

MR BOCCABELLA:   Your Honours, the primary proposition of a special leave point is that any person who makes a decision which affects an individual’s rights in a public law context has to be authorised to make those decisions and of course, a fortiori, if the decision is from a public statutory body, and I submit that is an essential ingredient of the rule of law.  The decisions of the court below stand for a dilution of that principle in this sense.  If there is a fundamental flaw in a necessary intermediate decision, a final adverse decision against a person cannot be made if it is dependent on that unauthorised intermediate decision.

FRENCH CJ:   The intermediate decision, as you are calling it here, is a certification which must attach to a ministerial satisfaction in relation to the Minister’s decision to cancel the visa?

MR BOCCABELLA:   Yes, your Honours, and as your Honours are obviously apprised of the matter, the person who made the determination which formed the basis of that certificate simply was not authorised to do so.

FRENCH CJ:   This was an officer of the University, was it not, or of the relevant aspect of the University?

MR BOCCABELLA:   Yes, it was.

CRENNAN J:   Well, Mr Lloyd does not contest that, that Ms Issa did not have the delegation.

MR BOCCABELLA:   No.

FRENCH CJ:   But she was an officer?

MR BOCCABELLA:   Yes, but the Griffith University Act 1998 (Qld) specifically gave delegation to the Pro Vice Chancellor of International Students, and therefore no one else could make that determination. To hold otherwise could mean that it could go down the line to a very junior officer.

CRENNAN J:   Now, Griffith University had procedures internally for making complaint about the wont of delegation of Ms Issa, I presume?

MR BOCCABELLA:   Not that I am specifically aware of, but no doubt under the Griffith University Act, there possibly could be some complaint about that regard.  But of course, that was not known until after the decision to cancel the visa and in migration law, of course, the guillotine comes down without any extension of time on merit review rights and the like.  Once a migration review tribunal has made a decision, that is really the end of the matter unless there is judicial review, so it really comes down to jurisdictional facts.

Once it is conceded that the person did not have authority to make the determination or sign the certificate, in my submission that is really the end of the matter because these are serious decisions.  Not only do they affect the right of an individual student which in this case and in most cases would amount to a deportation order, they also affect the reputation of the education provider itself.

Now, your Honours, an obvious solution to this would have been for the Pro Vice Chancellor, International Students, to have simply said, “Look, why are we” – as your Honours see in the material – “cancelling a visa in relation to this person undertaking – why are we in effect cancelling a visa or taking the steps to cancel that visa when we on the other hand have already given this person permission to undertake a Master of Science in Information Technology.”

FRENCH CJ:   Well, the University is not cancelling the visa.  The University is certifying that the - or the relevant officer is purporting to certify that the person has not had satisfactory attendance at a course for which they are enrolled.

MR BOCCABELLA:   Yes, that is the practical effect ‑ ‑ ‑

FRENCH CJ:   That is not a decision to cancel the visa.

MR BOCCABELLA:   But it is close to it because without that ‑ ‑ ‑

FRENCH CJ:   I do not know what that means legally, Mr Boccabella.

MR BOCCABELLA:   Well, it is the operative kind of the cancellation process.  Without that there cannot be a cancellation of a visa so for all practical purposes it puts that into place.  It puts the cancellation into place which of course leads to a removal from Australia.  Your Honour, it is our submission that a final adverse decision affecting the rights of an individual has to depend on a solid chain of links and of course the applicant submits that all the links in the chain have to be solid in order for there to be a legally weight‑bearing decision.  To have one link missing in a weight‑bearing chain would create a legal fiction and in my submission causes injustice. 

Could I take you to page 175 of the application book and indeed to paragraph 27?  Your Honours, the special leave point is really based on this.  The respondent contends that:

The only mandatory task of the Minister is to determine that, on its face, a certificate is of a kind that engages Condition 8202(3) –

Now, your Honour, it is not quite correct to say that the officer made the certificate.  What actually happened was that the certificate was a word process document with the name of the Pro Vice Chancellor, Mr Madden, at the bottom.  The certificate did not purport to be made by this other officer.  The evidence before the court and accepted by the parties is that Mr Madden was overseas and never saw the material.

Your Honour, the associated letter which said here is the certificate was signed by this other officer but this other officer never purported to make the decision in her own right.  She purported to print out a certificate with the name of Mr Madden on the bottom, of course, obviously, unsigned.  Now, your Honours, that is not a person making the decision and it fits ‑ ‑ ‑

CRENNAN J:   But accepting that, is not the real point here whether, on statutory construction, the present scheme requires the Minister to form a view on attendance and academic progress in matters of that kind or whether the scheme has been designed so that that is for the academic provider.

MR BOCCABELLA:   That is for the academic provider but the certificate still has to be valid.  This is not as if ‑ the English language courses are particular in this sense.  They do not go for any period of time.  They are, in effect, how long is a piece of string.  They are not like a Master of Science or a Bachelor of Science.  A person can attend a course for six weeks, eight weeks, 12 weeks, et cetera. 

Now, my submission is if a senior officer properly delegated looked at a matter like this, they would make inquiries as to why are we granting this person permission to enrol in a Master of Information Technology when we are setting in train an irreversible process which will end up having this person’s student visa cancelled and, therefore, he will not be able to take that up. 

Now, an obvious solution would be just to simply say look, invite this person to come back for a few more weeks to resolve that problem of the attendance.  If he is under 80 per cent, bring him back and let him finish this so he gets that extra period.  That is why, in my submission, it is not just a case of an officer making the decision, it is the case of an officer printing out a word process document.  A person is not authorised in an acting position and then putting the name of the authorised person at the bottom without a signature.  Your Honour, my submissions are ‑ ‑ ‑

CRENNAN J:   All these arguments seem to be directed to looking behind the certificate.  You are not suggesting, are you, that anything on the face of the certificate would alert a reader of the certificate to the invalidity which you identify?

MR BOCCABELLA:   Well, it does not have a signature and then the letter accompanying it said the person’s name which is Miss Issa for Mr Madden.  Now, that would give some indication that there may be something awry here.  We have a word process document which is unsigned and we seem to have a letter which is not saying “I, acting in the position of this” or “I have made this decision”.

CRENNAN J:   We do understand that.  We do understand the point you make about Miss Issa did not have the requisite delegation but do you not need to come to consider condition 8202 and what is required of the Minister?

MR BOCCABELLA:   Yes.  Well, in my submission, it is just a jurisdictional fact that the Minister cannot cancel a visa on the strength of that certificate unless there has been a valid certificate.  Let us look at some other examples.  Let us put aside fraud because fraud always unravels everything, but just say simply an error.  What if there was an error in the name?  What if they put down Robert James Smith rather than Robert Peter Smith, in the sense that they wrote a certificate out for Robert John Smith but it was meant to be for Robert Peter Smith, and all the Minister gets is a certificate about Robert John Smith.

Now the certificate on its face would have all of those things but it would still be an invalid certificate directed at the appropriate person.  It is, in my submission, just simply a jurisdictional fact.  My learned friends do make some point about the fact that does this mean the Minister has to go behind every single certificate?  Well, no, obviously it does not.  An applicant has to make out their case.  They make out their case by showing – well, look on investigation it turns out this person was unauthorised.

FRENCH CJ:   Can I just understand precisely how the certificate worked?  We have the ESOS Act ‑ ‑ ‑

MR BOCCABELLA:   Yes.

FRENCH CJ:   ‑ ‑ ‑ and there is section 19 of that I think is mentioned.

MR BOCCABELLA:   Yes, that is purely procedural but could I take you to my ‑ ‑ ‑

FRENCH CJ:   Well, sorry, just before we do that, and then we have standards under that Act and neither the Act nor the standards themselves provide for a statutory process of certification, do they?

MR BOCCABELLA:   No, no.

FRENCH CJ:   So the term “certification” or “certificate” is what we find for the first time or the verb “certified” is found for the first time in condition 8202.

MR BOCCABELLA:   That is right.

FRENCH CJ:   Yes.

MR BOCCABELLA:   If I could just put it all in context, could I take your Honours to the applicant’s list of authorities book, if you have that there, on page 1, it will not take ‑ ‑ ‑

FRENCH CJ:   Yes.

MR BOCCABELLA:   This will not take much time, your Honour. 

FRENCH CJ:   No, that is all right.

MR BOCCABELLA:   But essentially section 116(1)(b) of the Migration Act says – “the Minister may cancel ‑ ‑ ‑

FRENCH CJ:   I know we have - it all fits into the criteria and - I am not worried about that.  What I am looking at is the use of the words “has certified” in condition 8202(3)(b).

MR BOCCABELLA:   That is on page 8 of that book.

FRENCH CJ:   Yes.

MR BOCCABELLA:   I will take you to that.  So your Honours obviously have the scheme which is that if the ‑ ‑ ‑

FRENCH CJ:   If the Minister is not satisfied that you meet the requirements then the visa is cancelled.

MR BOCCABELLA:   Yes.  So if I just take you then, your Honours, to page 8, subparagraph (3)(b) ‑ ‑ ‑

FRENCH CJ:   Yes.

MR BOCCABELLA:  

A holder meets the requirements of this subclause if neither of the following apply –

Well (a) did not apply to the applicant and (b) is –

the education provider has certified the holder, for a registered course ‑ ‑ ‑

FRENCH CJ:   That is right, but certification is not something which is done under the Education Services for Overseas Students Act 2000; that does not talk about certification, does it?

MR BOCCABELLA:   No, no, it does not.  Section 19 is purely about notifying the Secretary of the Department so that is irrelevant for these purposes.

FRENCH CJ:   Yes, okay.  The standard sets out the minimum requirements for attendance.

MR BOCCABELLA:   Yes, which is not arithmetical.  There is a discretion ‑ ‑ ‑

FRENCH CJ:   No, I appreciate that.  All I am trying to get to is the statutory significance of the term “certified”.  It strikes me, having regard to the way it is used in 8202 that it is talking about something that the education provider does.  You could have used the words “has stated”, for example.  It would not be any different in significance, would it?

MR BOCCABELLA:   Well, behind whether it is a statement, whether it is a piece of paper, whether it is a certificate, there still ‑ ‑ ‑

FRENCH CJ:   Stated in writing.

MR BOCCABELLA:   There still has to be determination of that statement and that statement ‑ ‑ ‑

FRENCH CJ:   What I am getting to is this, 8202 describes an event which feeds into ministerial satisfaction, that is, does it mean anything more than this, that the education provider has stated in writing or said that the holder has not achieved satisfactory course attendance?

MR BOCCABELLA:   Well, except that there has to be a decision behind that.  It is not arithmetical and there are discretions.

FRENCH CJ:   Of course, yes, but what the Minister is acting upon is satisfaction of an event, namely, a statement or certification by the education provider, which itself is not a statutory thing.

MR BOCCABELLA:   No, but I answer that question by saying this:  who is the education provider?  I mean, it cannot obviously be done by the cleaner, but how far up the line could it be done?  Could it be done by a junior admissions officer not authorised?  Could it be done by a middle ranking officer unauthorised?

FRENCH CJ:   Well, things could be done by a corporate body without a specific delegation.  You can have an officer – just as things could be done in the name of a minister without a ministerial delegation.

MR BOCCABELLA:   Well, except here of course we are dealing with a public body which does have a delegation and, secondly if I use this analogy ‑ ‑ ‑

FRENCH CJ:   Yes, but it does not say anywhere, does it, that a person – an officer of the body cannot undertake this sort of function without a formal delegation?

MR BOCCABELLA:   Well, I answer that in this sense.  If we are looking at issues of ostensible authority, say it is a private education provider with a board and the board were to determine that only a particular level of officer, say, a manager of international students, can sign that certificate, well a junior officer then would not be authorised to give that certificate by the education provider.  The difference we have here is that the Griffith University is a public body and there are delegations determined by that Act and, your Honours, if I can be permitted to do so, on page 53 ‑ ‑ ‑

FRENCH CJ:   This is of the application book?

MR BOCCABELLA:   Yes, of the application book, the learned magistrate as he then was, federal magistrate as he then was, accepted that the delegations that were put in place were not properly employed.  Those who purported to exercise the power did not in fact possess it so, your Honours, what the Griffith University does under section 76 – sorry, in paragraph 76 as his Honour pointed out, the Griffith University Act has a council, obviously there is a delegation, and the delegations in this case were only given to the Pro Vice Chancellor international students.

FRENCH CJ:   What does section 20 of the ESOS Act – do we have that somewhere?

MR BOCCABELLA:   That is just simply the requirement ‑ ‑ ‑

FRENCH CJ:   Have we actually got the text of it somewhere in the materials?

MR BOCCABELLA:   Not in the material, no.  It is in my learned friend’s.  It is under tab 3, your Honour.  Section 20 is about sending a notice ‑ ‑ ‑

FRENCH CJ:   That is a notice to students of visa breaches.

MR BOCCABELLA:   Yes, obviously that can be done by anyone, and in this case, what happened here was the section 20 notice was signed by this person for ‑ ‑ ‑

FRENCH CJ:   But the delegation relates to visa breach notices to the students.

MR BOCCABELLA:   Well, this person had no delegation to do anything.  That was the difficulty.  You obviously cannot have a serious decision of this kind determined by the Federal Court of being utmost importance to the student being made by somebody who does not have a delegation at all.  Your Honours, section 20 is just about sending a formal notice and the notice ‑ ‑ ‑

FRENCH CJ:   I am trying to relate it to the delegation and then in turn to the certificate.  The certificate process, or the certification process is not a section 20 process, as I understand it.

MR BOCCABELLA:   No.  The certificate is a certificate.  The certificate could have been sent by Mr Madden’s secretary saying “I attach a certificate done by Mr Madden under section 20”.  So the certificate just had no signature.  Mr Madden never saw it.  He was overseas, did not see

the file, and he purportedly certifies under 8202 that the student has not met the requirements.  But he could not possibly have done that.

FRENCH CJ:   All right, thank you, Mr Boccabella.

MR BOCCABELLA:   Thank you, your Honour.

FRENCH CJ:   Mr Lloyd.

MR LLOYD:   The central issue is the jurisdictional fact assertion.  We do not deny that under section 16 is what might be loosely called a jurisdictional fact but it is not a fact the objective truth of which is the critical matter, but the Minister’s satisfaction, and that satisfaction in relation to relevantly here condition 8202.  In relation to condition 8202, the Minister has to decide whether or not he is satisfied of whether a certificate has been issued of the relevant kind, and that is a certificate relevantly here as to not achieving satisfactory course attendance.

If I can just say, in our bundle, 8202 is on page 52 under tab 2.  That refers to section 19 and standard 11.  We do not say that section 19 is entirely irrelevant.  It is under tab 3.  There is an obligation there to give information to the secretary – that is the Secretary of the Department of Education, not of Immigration – under section 19(1).  Then relevantly, under section 19(2):

A registered provider must give the Secretary particulars of any breach by any accepted student of a prescribed condition –

and condition 8202 is a prescribed condition.  So that gives rise in part to the obligation, not the totality of it but that is in part.  Subsection (3) says:

Information required under this section must be given in a form approved by the Secretary.  The approved form may be electronic.

Perhaps I should just note subsection (4):

If the registered provider is an unincorporated body –

which is not the current case –

then it is instead the principal executive officer of the provider who must give –

or at least who is responsible.  There is some significance here that these obligations are criminal offences so if they are not done it is a criminal offence for the education provider.  So there is a need to identify it.  In relation to a corporate body it is the body that would commit the offence if they did not give the notice. 

Under tab 4 is the national Code.  We do not have all of the national Code.  Your Honour Justice Crennan asked whether or not there was a capacity for a sort of review within the University.  Under Standard 8 there is an obligation in relation to matters at least arising under the Code to have both internal and external review mechanisms but relevantly for present purposes is Standard 11.  It provides in 11.1 that:

The registered provider must record the attendance –

Under 11.3:

the registered provider must have and implement appropriate documented attendance policies and procedures for each course which must be provided to staff and students that specify –

Then there is a reference in a to an “80 per cent” attendance requirement.  Then in 11.6:

Where the registered provider has assessed the student as not achieving satisfactory attendance for the courses identified in 11.1, the registered provider must notify the student in writing of its intention to report the student for not achieving satisfactory attendance.  The written notice must inform the student that he or she is able to access the registered provider’s complaints and appeals process as per Standard 8 –

That is what I have just mentioned –

and that the student has 20 working days in which to do so.

Then under 11.7:

Where the student has chosen not to access the complaints and appeals processes within the 20 working day period, withdraws from the process, or the process is completed and results in a decision supporting the registered provider, the registered provider must notify the Secretary of DEST through PRISMS that the student is not achieving satisfactory attendance as soon as practicable.

PRISMS is a computerised system which all the registered education providers become party to.  That is what applied in this case.  So the notice is sent pursuant to the Standard 11 – that is pursuant to 11.7, in effect, and section 19.  That obligation is met by the education provider notifying the Secretary of the Department of Education who in turn when getting such a notice, and I think it is done automatically, relays that to the Department of Immigration.

At the same time under section 20 a notice is sent out to the student.  The student must report to the Department of Immigration to find out – to report on what happens at that reporting and what happened in this case is that they get a notice under section 116 of the Act that there is an intention to cancel their visas for breach of the condition.

So, in substance, it is the notification under 11.7 which is received ultimately by the Department of Immigration and a delegate of the Minister can act upon that.  It was the scheme that the Minister is entitled to act upon that and any review rights in relation to it are built into the national Code.  We say that when one appreciates the legislative scheme, it is clearly one where it turns on the satisfaction of the Minister. 

It is agreed by the applicant in their submissions, I think paragraph 5 of their submissions in‑chief that there is no obligation on an officer down the line to go behind a certificate that looks authentic.  We travel together that far but they say well, although there is no obligation, nonetheless because, they say, it is a jurisdictional fact, they are able to come to a court later and show that the notice was, as they put it, not valid because the person who pressed the button or authorised the person to press the button was not authorised.

FRENCH CJ:   The way, I think, Mr Boccabella has put it now does not so much turn on some characterisation of validity but rather whether it is a certificate by the education provider within the meaning of 8202, whether the Minister can be satisfied with that.

MR LLOYD:   Yes, and we say it is ultimately what the Minister gets is a certification which, if it appears to the Minister to be correct, then he can and, indeed, should act upon it because he is satisfied of it being correct.  So, the jurisdictional fact is the Minister’s satisfaction that he has been certified or has received information.  I accept what your Honour said in questioning.  It does not really – the Act and the national Code do not refer to a certificate, they just refer to the need to inform somebody of an event following the end of a possible review process.

FRENCH CJ:   The notice of certification under 8202 does not – it itself does not have a statutory significance except perhaps to the extent you link it in to the notification under standard 11 of the Code.

MR LLOYD:   Yes, there is an obligation under both section 19 and national Code standard 11 to notify of the event.  That is how the scheme

works.  There was a time when the Minister had to make assessment.  That was all repealed in 2007 and this new scheme was put in place which expressly intended that the Minister would have no role in assessing attendance.

FRENCH CJ:   But certification does not add any additional statutory significance – does not have any additional meaning over and above notification?

MR LLOYD:   No, so the Minister has received a notice that somebody has not achieved satisfactory attendance and the Minister is entitled to act upon that.  We say that the scheme is meant to be – that if the person does not like it, they take the review rights they have under the scheme to pursue the mechanism.  That is reinforced by section 40 of the ESOS Act which makes it clear that the Code is not meant to have any legal effect other than that which is expressly provided for and, as we have said in our submissions, there is a few things that are provided for but there is nothing in a Project Blue Sky way which is meant to suggest that there is some intricate notice requirements or delegation requirements or anything of that kind that would go to the validity of a notice such that, although, section 116 in terms turns upon the satisfaction of the Minister, there is still a capacity to go behind that and say that the notice is not a notice or not a certificate of the kind required under the national Code.

FRENCH CJ:   Thank you, Mr Lloyd.  Yes, Mr Boccabella.

MR BOCCABELLA:   Your Honour, the notifications contain a decision, whether we call it a notification or certificate.  Could I take you to that paragraph 11.9 of the standard which is in the first respondent’s book and also it is obviously in my submissions but conveniently, seeing you have it open, it is the fourth tab on page 22 at the bottom.  You will see there it is not just an event.  It is the education provider:

may only decide not to report a student for breaching the 80 per cent attendance requirement where:

a.the student produces documentary evidence clearly demonstrating that compassionate or compelling circumstances . . . apply, and –

b.that decision is consistent with its documented attendance policies –

and I note the word “decision”.  So the difficulty with the respondent’s argument is there has to be a decision as identified in clause 11.9.  Now, that is just fundamental.  Without there being a decision there just cannot be

a certification of that decision, and there cannot have been a decision because the person is not authorised. 

Your Honour, this is found in lots of legislation.  My learned junior has found similar legislation, for example, in the Mineral Resources Act (Qld) where a decision or recommendation of grant or renew lease cannot be made unless a relevant environmental authority has been issued. Now, if a relevant environmental authority had been issued by a person not authorised then there could not be a valid environmental authority. So, your Honours, that is the special leave point. The decision that has to be made under 11.9 has to be made by an authorised officer. Unless it is, then there is no jurisdiction to then cancel the visa. Those are my submissions.

FRENCH CJ:   Thank you, Mr Boccabella.

The asserted special leave application in this matter is whether a certification made by an officer of an education provider who lacks a formal delegation to make such certification can nevertheless support the requisite ministerial satisfaction for the purposes of regulation 2.43(2)(b)(ii) of the Migration Regulations.  There are many species of education providers, some of which may be established by statute, as in the case of a university, others which may not.  The question is whether the Minister can be satisfied that a certificate issued over the signature of an officer of an education provider is evidence that the education provider has certified the holder as not achieving satisfactory course attendance in a registered course.  There is nothing in the present case to suggest it was not open to the Minister or his delegate to be so satisfied or that the Minister was not so satisfied.

The prospects of success on the appeal are not such as to warrant the grant of special leave.  Special leave should be refused with costs.

The Court will now adjourn to reconstitute.

AT 11.58 AM THE MATTER WAS CONCLUDED