Poonia v Minister for Immigration
[2011] FMCA 381
•24 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POONIA v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 381 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – Tribunal refusing to follow consent orders for the remittal of the matter to the Tribunal agreed to in earlier judicial review proceedings. PRACTICE AND PROCEDURE – The Tribunal, on the rehearing of a matter remitted on the basis of court orders made which include a notation setting out the legal reason for the remittal, is bound to conduct the review in accordance with that notation. |
| Migration Act 1958 (Cth) |
| Kumar v Minister for Immigration [2010] FMCA 614 Liu v Minister for Immigration [2004] FCA 1058 Liu v Minister for Immigration [2005] FCAFC 123; (2005) 146 FCR 228 Maan v Minister for Immigration [2009] FCAFC 150; (2009) 179 FCR 581 Mazumder v Minister for Immigration& Anor [2010] FMCA 76 Mo v Minister for Immigration& Anor [2009] FMCA 1026 Singh v Minister for Immigration& Anor [2009] FMCA 1261 |
| Applicant: | ABHISHEK POONIA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 304 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 24 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2011 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms K Whittemore Sparke Helmore |
CONSENT ORDERS
A writ of certiorari issue directed to the Migration Review Tribunal quashing the decision of the Migration Review Tribunal dated 19 January 2011.
A writ of mandamus issue directed to the Migration Review Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 4 June 2009 according to law.
The first respondent pay the applicant’s costs fixed in the amount of $426.
The Court notes that the first respondent accepts that, on the basis of the Tribunal’s finding that at the time of certification the applicant was not an accepted student, the Tribunal erred in finding that the fact that the applicant was not an accepted student at that time did not operate to invalidate the certificate that Wollongong University issued for the purposes of condition 8202(3).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 304 of 2011
| ABHISHEK POONIA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 23 February 2011 seeking to review a decision of the Migration Review Tribunal (“the Tribunal”) made on 19 January 2011. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s subclass 573 Higher Education Sector visa.
This is not the first time that this case has been before the Court. An earlier decision of the Tribunal was the subject of judicial review proceedings before this Court in 2010. That proceeding resulted in consent orders made by Lloyd-Jones FM on 14 May 2010 and entered on 26 May 2010:
THE COURT ORDERS, BY CONSENT, THAT:
1.A writ of certiorari issue directed to the Migration Review Tribunal quashing the decision of the Migration Review Tribunal dated 27 October 2009.
2.A writ of mandamus issue directed to the Migration Review Tribunal requiring to determine the application made to it for review of the decision of a delegate of the first respondent dated 4 June 2009 according to law.
3.The first respondent pay the applicant’s costs.
Note: The first respondent accepts that, on the basis of the Tribunal’s finding that at the time of certification the applicant was not an accepted student, the Tribunal erred in finding that the fact the applicant was not an accepted student at that time did not operate to invalidate the certificate that Wollongong University issued for the purposes of condition 8202(3).
I have before me as evidence the court book filed on 28 March 2011.
The Tribunal decision following remittal of the matter commences at court book (CB), page 127. In paragraph 5 of its decision (CB 128), the Tribunal noted that the matter was before the Tribunal pursuant to an order of this Court. The Tribunal considered the matter afresh. For present purposes, the important issue is the discussion by the Tribunal of the interpretation of condition 8202(3) attaching to the applicant’s visa. The Tribunal commenced a discussion of that interpretation at [45] of its reasons (CB 134), and continuing through to [68] (CB 139):
The reference in condition 8202(3) to a certification “for a registered course undertaken by the [visa] holder” would suggest that the holder must have been an accepted student of the course at the relevant time. There are two views as to what the relevant time is and the implications if the applicant is not an accepted student at the time of certification. There is no clear binding authority on these questions. Apart from the specific reference to ‘a registered course undertaken by the holder’ in condition 8202(3), the question arises because of the reference to s.19 in condition 8202(3). That is, non-compliance with the current condition 8202(3) occurs if the education provider has certified the visa holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress or attendance for s.19 of the ESOS Act and standard 10 or 11 of the National Code. Further, under s.19(2), a registered provider must give the Secretary, DEEWR, particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.
On one view, certification will only be valid where the student is an ‘accepted student’ at the time it is issued. Arguments in support for this view may be summarised as follows
· unless a student is an ‘accepted student’ at the time of certification, the certificate will not meet the description of being a certificate ‘for s.19 of the ESOS Act’; and
· the combined effect of Liu v MIMI[A] [2005] FCAFC 123; (2005) 146 FCR 228 (Liu) and Maan v MIAC [2009] FCAFC 150; (2009) 179 FCR 581 (Maan) is that the relevant time for determining whether a student is an accepted student is when the breach occurred (Liu), which is when the provider certifies that the student has not complied with 8202(3)(a) or (b) (Maan); and
· even if the decision maker is not required to go behind a certificate, if the visa holder was not an accepted student at the time a certificate is issued, the certificate would arguably be invalid “on its face”.
This approach would appear to be consistent with the approach of Driver FM in Kumar v MIAC [2010] FMCA 614 (Driver FM, 19 November 2010), to the effect that the Tribunal must be satisfied that the certificate must be issued “in accordance with” s.19 and that if the requirements of s.19 have not been met, then there will have been no breach of visa condition. It is not clear what his Honour considered would amount to a provider’s breach of s.19 but he may have had in mind the issuance of a certification to a person who was no longer an accepted student of the provider. However, it is the Tribunal’s view that his Honour’s observations on the accepted student issue are obiter, and not binding.
An alternative view is that the certification is not ineffective just because the student was not an accepted student at the time it was issued. The essential arguments in support of this view may be summarised as follows:
· the Tribunal is not required to look behind a certificate that on its face is of a kind that engages condition 8202(3);
· the certification referred to in condition 8202(3) is not a certification for s.19, but a certification of unsatisfactory course progress or attendance for s.19; the validity of a certificate “on its face” would therefore not depend on the visa holder’s relationship with the education provider at the time of certification;
· having regard to an ambiguity in the concept of breach in the relevant statutory provisions, principles of statutory interpretation permit an alternative construction to the natural and ordinary meaning of the reference to ‘breach by an accepted student of a prescribed condition’ in s.19; and
· while Maan establishes that the breach of condition occurs when there is a relevant certification, Liu is distinguishable as it relates to a different version of condition 8202 and does not necessarily establish that under the current version the relevant time for determining whether a student is an accepted student is the time of breach, i.e. the time the student’s unsatisfactory conduct is certified.
In Mo v MIAC & Anor [2009] FMCA 1026, the Court considered the question in the context of s.20 of ESOS and s.137J of the Act, not s.116. However, the relevant aspect of this judgement was applied in the context of s.116(1)(b) in Singh and Mazumder. If the approach in Mo, Singh and Mazumder is accepted, the Tribunal would not be required to look behind a certification that on its face is of a kind that engages condition 8202(3). Secondly, if the view is taken that the certification is not “for” s.19 of the ESOS Act but rather “for” condition 8202(3), then whether or not the visa holder has complied with condition 8202 will not turn on whether the provider has complied with s.19. On that view, a certification would not be invalid ‘on its face’ for reasons relating to the student’s status vis à vis the provider at the time it was issued.
It is also notable that there is no reference to ‘accepted student’ in the migration legislation. While s.19 and standards 10 and 11 are concerned with accepted students, condition 8202(3) is concerned with visa holders. If the certification referred to in condition 8202(3) is distinct from the reporting requirement imposed by s.19 and standards 10 and 11, then the student’s continuing relationship with the registered provider for ESOS purposes would not necessarily be determinative of the validity of a certification for migration purposes. In other words, for migration purposes, a provider would not be prevented from certifying a visa holder’s unsatisfactory course progress or attendance for s.19 and standard 10 or 11 just because the student is no longer enrolled in the course.
Where there is an ambiguity in the legislation, or its ordinary meaning would lead to unintended consequences, to assist construction it is permissible to have regard to the statutory purpose. There is a substantial body of authority to the effect that where a judge concludes that the legislature could not have intended that a statute operate according to its literal meaning since that meaning would defeat the manifest object or purpose of the legislation, then an alternative interpretation must be preferred.
The relevant statutory provisions are ambiguous. It is relevant to note that standards 10 and 11 occupy a similar position to s.19 in condition 8202(3). Although the breach of condition which must be reported to DEEWR under s.19 is constituted by the certification, the language of standards 10 and 11 of the Code indicates that the requirement to report under s.19 arises when the student has failed to achieve satisfactory course progress or attendance respectively. That is, under the Code it is the student’s breach of the provider’s course progress/attendance policies as implemented under those standards that triggers, first, the complaints and appeals process and then, when that process has been exhausted, the requirement to report. This is reflected in DEEWR’s Explanatory Guide to the National Code which refers to the reporting process for not making satisfactory process, and in their guidelines for registered providers, which explain that “the provider notifies the Secretary of DEEWR through PRISMS of the student not achieving satisfactory progress after the appeals process (if actioned) is finalised...”. The guidelines for unsatisfactory attendance are to similar effect. Arguably, this is also reflected in the language of condition 8202, in its reference to failure to achieve unsatisfactory course progress or attendance for s.19 and standards 10 and 11.
This points to an ambiguity in the concept of ‘breach’ in this context, suggesting that whilst, technically, the breach contemplated by condition 8202 is the certification of unsatisfactory progress or attendance, the breach contemplated by s.19 is the unsatisfactory progress or attendance itself, under standard 10 or 11 respectively. On that view, it would suffice if the student were an accepted student at the time of the unsatisfactory conduct. Furthermore, a construction of condition 8202(3) and s.19(2) that requires the student to be enrolled when the certificate is issued is likely to defeat the statutory purpose in cases where the provider, in following its own procedures put in place under the National Code, ‘excludes’ the student before it certifies the student and issues the s.20 notice.
In these circumstances, to assist construction it is permissible to have regard to the statutory purpose of the 1 July 2007 amendments, inserted by Migration Amendment regulations 2007 (no 5) SLI 2007 No 190, that made condition 8202 a prescribed condition for s.19 and at the same time made certification the breach of condition.
According to Explanatory Statement to Migration Amendment Regulations 2007 (No 5) SLI 2001 No 190, a primary purpose of the 1 July 2007 amendment to condition 8202(3) that established the certification as the breach was to transfer the responsibility of assessing a student’s attendance and progress from the Department of Immigration to the education provider, because it was considered that the issue of a student’s course progress and attendance is more appropriately handled by DEEWR and education providers and that the Department’s role should be limited to migration matters. Thus, satisfactory attendance and progress remain pivotal to condition 8202(3). According to Explanatory memorandum to ESOS Amendment (2006 Measures No 2) Bill 2006 the purpose of prescribing the relevant condition for ss.19 and 20 was to ensure consistency between the ESOS framework and the migration framework as it applies to student visa conditions relating to educational requirements, and to give DEEWR the flexibility to amend its regulations to ensure that consistency.
Nothing in the secondary materials would suggest that these amendments to condition 8202(3) and s.19 were intended to alter their operation other than to shift the responsibility of assessing students from DIMIA to DEEWR and education providers and to limit DIAC’s role to migration matters. In that light, the observation in Liu - that whether or not there remains a relationship of registered provider and accepted student for the purposes of the ESOS Act is irrelevant to the matters which are put in progress under the Migration Act by the giving of a notice under the ESOS Act - would appear to be equally relevant in the present context.
Thus, even if the natural and ordinary meaning of the expression “for” s.19 and standards 10 and 11 in condition 8202(3) may be thought to import all the requirements of s.19 and the National Code before a certification is effective for migration purposes, an alternative construction to the natural meaning of “breach by an accepted student of a prescribed condition” in s.19 should be preferred if available. Having regard to the ambiguity in the reference to breach of a prescribed condition in the relevant provisions of the ESOS regime, the references to s.19 and standard 10 or 11 in condition 8202(3) may arguably be regarded as references to unsatisfactory course progress or attendance under the ESOS legislation as implemented by the provider.
On that view, insofar as the applicant’s status vis à vis the education provider is relevant to the question of breach of visa condition, the relevant time for considering that question would be the time of the unsatisfactory conduct. A similar conclusion may also be reached by reference to Maan and Liu.
As already mentioned, there are two views as to the relevant time for determining whether the applicant was an accepted student and the issue has not been judicially determined. On one view, the combined effect of Liu and Maan is that the relevant point in time is when the provider certifies that the student has not complied with 8202(3)(a) or (b). An alternative view is that the relevant time is when the student failed to comply with the educational institution’s requirements.
Maan clearly establishes that a breach of the current version of condition 8202(3) is established by a registered provider certifying that the visa holder has failed to achieve satisfactory course progress or attendance, not by the student’s actual conduct.
Liu v MIMIA [2005] FCAFC 123; (2005) 146 FCR 228 at [19], referring to Liu v MIMIA [2004] FCA 1058 (Cooper, J 17 August 2004) at [26] establishes that s.20 of the ESOS Act does not require that the student remain an accepted student at all times after the obligation on the provider to give the requisite notice arises in order that the notice given is an effective notice for the purpose of ss.19 and 20. In relation to this, the Full Court agreed with the primary judge that:
the object of the ss 19 and 20 notices is to initiate processes to ensure that the future status of the student visa is addressed under the Migration Act, having regard to the breach of the visa condition. Whether or not there remains a relationship of registered provider and accepted student for the purposes of the ESOS Act is entirely irrelevant to the matters which are put in progress by the giving of a notice under s 20 of the ESOS Act.
In the context of condition 8202 as it stood pre-1 July 2007, the Court held that the question of whether a person is an ’accepted student‘ of a registered provider fell to be determined when the breach of the student visa condition occurred. In that case, that was when the applicant was excluded from his course because of his failure to make satisfactory progress. The Court stated that the appellant was, at the time of the breach, an ‘accepted student’ of the education provider, and the provider came under an obligation to notify both the Secretary and the appellant of the breach. That obligation continued until it was discharged by performance.
Thus, the combined effect of Maan and Liu could support the proposition that the point in time used to determine whether a student is an accepted student must be when the breach of condition occurred, which, for condition 8202 post-1 July 2007, is when the provider certifies that the student has not complied with 8202(3)(a) or (b).
However, the Court in Liu was considering a different version of 8202, for the purposes of s.20 of the ESOS Act and s.137J of the Migration Act and is therefore distinguishable. The Court’s conclusion, that the relevant time for determining whether a person is an ‘accepted student’ was when the breach of student visa condition occurred, should not be regarded as binding in the context of the post-1 July 2007 form of condition 8202(3). In this context, different considerations arise, and it cannot be assumed that the Court would reach the same conclusion. As mentioned above, satisfactory attendance and progress remain pivotal to condition 8202(3) as amended. It is therefore arguable that in the context of amended condition 8202(3), the question of whether a person is an “accepted student” of a registered provider would fall to be determined not at the time of breach of condition 8202 but at the time of breach of the provider’s progress or attendance policies under the ESOS legislation. Provided the visa holder was an accepted student at that time, the certification may be said to be “for a registered course undertaken by the holder” for condition 8202(3). That construction would appear to be consistent with the reasoning in Liu, and with the reference in condition 8202(3) to unsatisfactory course progress or attendance for s.19 and standard 11 or 12, and would serve the statutory purpose.
Overall, the conclusion in Liu, that the ‘accepted student’ question falls to be determined at the time of breach of visa condition, should not be regarded as determinative in the context of post-1 July 2007 condition 8202. The reasoning in Liu would appear to equally support the proposition that in this context, the relevant time for determining whether a person is an accepted student is when the unsatisfactory progress or attendance occurred.
Consequently, while there is a difference of judicial opinion on the scope of the Tribunal’s task, it is the Tribunal’s view that the weight of authority supports the proposition that the Tribunal is not required to “go behind” a certificate which on its face is of a kind that engages condition 8202(3), whether the allegation relates to the provider’s non-compliance with s.19(2) or standard 10 or 11 of the National Code. Further, the references to s.19 and standards 10 and 11 in condition 8202(3) do not import a requirement that the student be an ‘accepted student’ at the time of certification, or that the provider comply with those provisions, for the certification to be effective. Third, the references to ‘accepted student’ in s.19 do not mean that the student must be an accepted student at the time the student is reported. In other words, failure to report before cancelling a student’s enrolment does not involve non-compliance with s.19. Finally, it does not follow from Maan and Liu that the relevant time for determining whether a student is an accepted student is when the provider certifies the student as not complying with its course progress or attendance policies.
To the extent that Driver FM’s decision in Kumar points to a different conclusion, his Honour’s view as to the scope of the Tribunal’s task is at odds with the decisions in Mo, Singh and Mazumder.
Overall, in the absence of clear judicial authority, and after considering all the arguments, the Tribunal has formed the view that that a certificate is not ineffective for condition 8202 just because the student may not be an accepted student at the time of certification. Insofar as the student’s relationship with the provider is relevant to whether there is a certification for condition 8202(3), it may suffice that they were an accepted student at the time of breach of the provider’s progress or attendance policies.
It must be said that the issue of interpretation, which the Tribunal was dealing with, is a difficult one. Reasonable minds can differ about that issue of interpretation. It would be desirable for the issue of interpretation to be clarified in an appropriate case. For the reasons that follow, however, this case is not the appropriate vehicle to obtain that clarification, and the Tribunal was wrong to attempt to use it in that fashion.
The orders made by the Court last year contained a notation that reflected a view of the interpretation of the condition which the Minister accepted on that occasion. The Tribunal on review took a different view. After considering the issues of interpretation the Tribunal stated at [69] of its reasons:
The Tribunal notes that, in making its Order of 26 May 2010, the Court did not consider the matter and the note to that Order, that the Department accepted that the Tribunal erred in finding that the fact that the applicant was not an accepted student did not invalidate the certification, is not binding law, simply the department’s position on the question.
That paragraph is audacious. More seriously, however, it reflects a misunderstanding of the litigation process and the Tribunal’s position in that process. The orders made by the Court in 2010 were not simply a reflection of the view of the Minister’s Department. They were orders of the Court in litigation in respect of which the Minister had the responsibility on behalf of the Commonwealth. It was the Minister who compromised that litigation by agreeing to the consent orders made by the Court.
Secondly, the orders made by the Court were binding upon the Tribunal which, in accordance with usual practice, entered a submitting appearance in which the Tribunal submitted to any order of the Court save as to costs. It is not open to the Tribunal, having entered a submitting appearance, to contest on rehearing the orders made by the Court.
Some years ago it was agreed between the courts exercising jurisdiction under the Migration Act 1958 (Cth) and the legal representatives of the Minister that a notation should be included in consent orders remitting a case to the Tribunal. That notation serves two purposes. First, it informs the Tribunal of the essential legal reason for a consent remittal so that the Tribunal can deal with the matter in the light of the legal reasoning agreed to[1]. Secondly, it informs the judicial officer dealing with proposed consent orders of the basis upon which the orders are proposed to be made. The Tribunal was wrong in assuming that consent orders do not reflect a judicial consideration. A judicial officer dealing with consent orders is not a blind factotum. The judicial officer is obliged to consider whether it is appropriate to make the consent orders.
[1] The Tribunal had itself requested the inclusion of a notation in consent orders so that it might be guided in its reconsideration of cases so remitted.
I have no doubt that Lloyd-Jones FM exercised that responsibility in approving the consent orders made last year. Those orders were binding upon the Tribunal and the Tribunal erred in not proceeding to rehear the matter in accordance with those orders. That error is, in my view, a jurisdictional error which would, in itself, be sufficient to support a writ of certiorari quashing the Tribunal decision and a writ of mandamus requiring the Tribunal to re-determine the matter, according to law.
The Minster’s approach is to present consent orders reflecting the same view that the Minister took as to the interpretation of the visa condition in the earlier proceedings in this Court. The Minister is entitled to take that view of the interpretation of the condition on which, as I have already noted, reasonable minds can differ.
Having considered the proposed consent orders, I agree that it is appropriate to make them.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 26 May 2011
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