SINGH v Minister for Immigration
[2016] FCCA 1225
•25 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1225 |
| Catchwords: MIGRATION – Student visa – adverse certification from education provider – repeal of reg.2.43(2)(b) of Migration Regulations 1994 (Cth) between time of Delegate’s decision and Tribunal review – Tribunal bound to apply law as at date of hearing before it. |
| Legislation: Migration Act 1958 (Cth), ss.116, 348, 349, 499 Migration Regulations 1994 (Cth) |
| Cases cited: An v Minister for Immigration (2007) 160 FCR 480 SAAZ v Minister for Immigration [2002] FCA 791 Traut v Faustman Bros Pty Ltd (1983) 48 ALR 313 Harris v Caladine (1991) 172 CLR 84 Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Turnbull v NSW Medical Board (1976) 2 NSWLR 281 |
| Applicant: | AMANJOT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 938 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 8 March 2016 |
| Date of Last Submission: | 8 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar of Counsel |
| Counsel for the First Respondent: | Ms C Hillary (Solicitor) |
| Solicitors for the First Respondent: | DLA Piper |
Counsel for the Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The Further Amended Application be dismissed with the question of costs reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 938 of 2014
| AMANJOT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of India aged 27 years, having been born on 29 October 1988. He seeks in this proceeding, by Further Amended Application dated 16 January 2016 and filed in Court on 8 March 2016 (Further Amended Application), to quash a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the Migration Review Tribunal) (Tribunal), dated 11 March 2014, affirming a decision of the Delegate (the Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 22 January 2013 cancelling the Applicant’s Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa (Student Visa).
Mr Kumar of Counsel appeared at the hearing for the Applicant and Ms Hillary appeared for the First Respondent.
General Background
The Applicant’s Student Visa had been granted on 31 August 2011 with an expiry date of 2 May 2014. Relevantly, the Applicant was studying at the Australian Academy of Commerce Pty Ltd (AAC) for a Certificate II in Business. His Student Visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations). Condition 8202(3)(b) required the Applicant to have not been certified by his education provider, in this instance AAC, as not achieving satisfactory course attendance.
However, by a Certification for the purposes of subclause cond.8202(3) dated 14 November 2012, AAC certified that the Applicant had not achieved satisfactory course attendance in his Certificate II in Business course (adverse certification).
In these circumstances, the power of the Minister to cancel the Applicant’s Student Visa for non-compliance with a condition of the Student Visa was enlivened pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (Act).
Decision of Delegate
By a letter dated 13 December 2012, the Applicant was given notice by the Department of Immigration (Department) of an intention to consider cancellation of the Student Visa because of breach of s.116(1)(b) of the Act, by reason of the adverse certification from AAC. The letter invited the Applicant to put submissions and comment on any grounds for cancellation, and to give reasons why the Student Visa should not be cancelled.
On 19 December 2012 and again on 21 January 2013 the Applicant provided responses and submissions to the Department. He agreed that he had not attended classes but submitted that he had endured a period of incapacity and mental anguish as a result of an injury he had suffered and he provided medical certificates in support. He asserted that he had not attended classes through circumstances beyond his control.
The Delegate on 22 January 2013, having considered the information before him, was satisfied there was a ground for cancelling the Student Visa and did so.
As at that date of 22 January 2013, s.116(1)(b) of the Act relevantly provided that the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa. Pursuant to s.116(2), the visa is not to be cancelled where prescribed circumstances exist, and pursuant to s.116(3) the visa must be cancelled where prescribed circumstances exist. Section 116 relevantly states:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
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(b) its holder has not complied with a condition of the visa;
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(2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Regulation 2.43(2) of the Regulations sets out the prescribed circumstances for the purposes of s.116(3). Regulation 2.43(2)(b)(ii) provided as at 22 January 2013 that the visa must be cancelled if the Minister was satisfied that the person had not complied with cond.8202 and that the non-compliance was not due to exceptional circumstances beyond the visa holder's control. The word “exceptional” is a simple non-technical word which means “unusual” or “out of the ordinary”: see per Lindgren J in An v Minister for Immigration (2007) 160 FCR 480 at 482 ([7]).
The Delegate’s decision to cancel the Student Visa stated that he had considered the Applicant’s explanation for the reasons for his non-compliance with cond.8202 and had considered Direction No.38 given by the Minister under s.499 of the Act, which directed decision makers to have due regard to, without being limited to, certain matters to determine if non-compliance with student visas was due to exceptional circumstances being beyond the visa holder’s control. The Delegate was satisfied that there was a ground for cancelling the Student Visa and that the reasons for cancelling outweighed the reasons for not cancelling and the Applicant’s non-compliance was not due to exceptional circumstances beyond his control.
Application for Review to the Tribunal
The Applicant then, on 30 January 2013, applied to the Tribunal for a review of the decision of the Delegate.
Thereafter by force of the Migration Legislation Amendment Regulation 2013 (No.1) (Cth) made on 14 March 2013, reg.2.43(2)(b)(ii) of the Regulations was repealed as from 13 April 2013. The effect of this repeal was favourable to applicants for student visas because it broadened the field of discretion to decision-makers and this purpose was made clear in the relevant Explanatory Memorandum, which stated as follows:
The amendments seek to repeal regulation 2.43(2)(b) of the Principal Regulations to cease the mandatory cancellation regime for the Student Visa Program. This responds to recommendation 25 of the Strategic Review of the Student Visa Program 2011 conducted by the Hon Michael Knight AO. Recommendation 25 suggests that “The mandatory cancellation requirement for unsatisfactory attendance, unsatisfactory progress and working in excess of the hours allowed should be removed, giving the Department of Immigration and Citizenship (DIAC) officers the discretion to determine cancellation in particular cases on their merits”.
Student visa holders are subject to a number of visa conditions, a breach of which may result in visa cancellation. Cancellation is generally discretionary, except for breaches of condition 8202, condition 8104 and condition 8105 contained in Schedule 8 to the Principal Regulations. Condition 8202 requires visa holders to maintain enrolment as well as satisfactory course progress and attendance. Condition 8104 and condition 8105 apply to Student visa secondary and primary applicants respectively and impose limits on the amount of work that the holder can undertake while in Australia. Generally speaking, the limit is 40 hours per fortnight while a course is in session.
Currently, where an alleged breach of condition 8104 and condition 8105 is reported to DIAC, paragraph 2.43(2)(b) requires that the visa must be cancelled if the breach is found to have occurred. In relation to a breach of condition 8202 cancellation must occur if the breach is found to have occurred and is not due to exceptional circumstances beyond the visa holder’s control.
The amendments seek to repeal paragraph 2.43(2)(b) so that breaches of these conditions no longer result in mandatory cancellation, but are treated under the existing discretionary provisions of section 116 of the Migration Act 1958 (The Act) that provide that a visa may be cancelled on certain grounds. This will enable decision makers to take the circumstances of the student into account before deciding whether cancellation is warranted. This will provide greater fairness to Student visa holders.
However, there was a transitional arrangement under cl.1303(2) of Sch.6 to the said Migration Legislation Amendment Regulation 2013 whereby the repeal of reg.2.43(2)(b)(ii) did not apply in relation to a person who relevantly held a student visa as at 13 April 2013. Nevertheless this transitional arrangement did not apply to the Applicant because of the cancellation of the Student Visa by the Delegate on 22 January 2013.
In this legislative context the Tribunal found in its Decision Record of 11 March 2014 that on 14 November 2012 the Applicant’s education provider, AAC, certified that he had not achieved satisfactory course attendance in his Certificate II in Business course. On that basis the Tribunal found that the Applicant did not comply with cond.8202(3)(b) and therefore that he had breached cond.8202.
Having found the Applicant had breached cond.8202, the Tribunal then considered whether it ought to exercise its discretion to cancel the Student Visa. The Tribunal made no reference to the repealed reg.2.43(2)(b)(ii) or to any necessity to consider whether any “exceptional circumstances” existed. The only reference to “exceptional circumstances” by the Tribunal was the historical recitation that the Delegate had cancelled the Student Visa for non-compliance with cond.8202 and that the non-compliance was not due to exceptional circumstances beyond the Applicant’s control. It seems clear to me that the Tribunal was obviously aware of the repeal of reg.2.43(2)(b)(ii) and that exceptional circumstances were no longer relevant to the Applicant’s review. It stated at paragraph 12 of its Decision Record as follows:
12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include the purpose of the visa holder’s travel to and stay in Australia; the reason for and extent of the breach; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (ie. consequential cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; whether the cancellation would lead to removal in breach of Australia’s non refoulement obligations; and the impact of cancellation on any victims of family violence, if this is a factor.
The Tribunal then in paragraphs 13 to 25 of its Decision Record summarised, considered and weighed up the materials before it including the matters and submissions upon which the Applicant had relied.
In the result the Tribunal found that the Applicant’s breach of cond.8202 was significant because maintaining satisfactory attendance at the nominated education provider was an integral part of the Student Visa. The Tribunal did not accept the Applicant’s claims that his circumstances prevented him from attending the course he was studying at AAC as required.
Having considered the Applicant’s circumstances as a whole the Tribunal concluded that the Student Visa should be cancelled, and affirmed the Delegate’s decision to do so.
Applicant’s Attack on Decision of Tribunal
The Applicant’s Outline of Submissions, dated 21 February 2016 and filed two weeks before the hearing date, contended that at the date of the Tribunal’s decision reg.2.43(2)(b)(ii) was still operative and that the Tribunal was required by that regulation and under Direction No.38, made on behalf of the Minister on 19 September 2007 under s.499 of the Act, to consider whether the non-compliance with cond.8202 was not due to exceptional circumstances beyond the Applicant’s control. However, it was said, the Tribunal had not done so and thereby had failed to properly apply the exceptional circumstances test.
That submission was carried into Ground 1 of the Further Amended Application, which was as follows (omitting the Particulars thereto):
Ground 1
The Tribunal fell into error in that it failed to make proper findings as to “prescribed circumstances” under s 116 of the Migration Act 1958 (the Act) and address “exceptional circumstances” under Reg.2.43 of the Migration Regulations at the date of breach and / or denied procedural fairness when it failed to address whether there were “exceptional circumstances” and / or Directions No 38 (subsequently replaced by Directions No. 61) made under s 499 of the Act ask the correct question as to “exceptional circumstances” existed and properly apply the discretion to cancel.
The maintenance by Ground 1 that reg.2.43(2)(b) had continued applicability to the Tribunal’s review was made subsequent to the Minister having pointed out in his Outline of Submissions dated 1 March 2016 that reg.2.43(2)(b) had been repealed as of 13 April 2013.
At the hearing, the Applicant seemed to accept that indeed reg.2.43(2)(b) had been repealed as of 13 April 2013, but continued to submit that Direction No.38 required the Tribunal to engage with and express findings about “exceptional circumstances”.
However, it is made clear by the terms of Direction No.38 that it is a direction to decision-makers to have due regard to, but not limited to, the guidelines in the Direction for considering cancellation of student visas for non-compliance with cond.8202 (or for the reviews of such cancellation decisions) and for considering revocation of automatic cancellation of student visas in connection, relevantly, with reg.2.43(2)(b)(i) and reg.2.43(2)(b)(ii).
Paragraphs 4 and 6 of Direction No.38, and now Direction No.61 which replaced it, stated as follows:
4. In relation to the issue that arises under subsubparagraph 2.43(2)(b)(ii)(B), decision-makers must have due regard to but are not limited to the following matters:
•policy advice from the Director of Compliance Policy Section (or, if there is a restructure, from the Director of the relevant section that is the successor on each occasion) to give due regard to a political upheaval or natural disaster in a particular country. Decision-makers must give consideration to whether that country is the student’s home country and to whether the particular political upheaval or natural disaster has affected the student’s ability to comply with condition 8202;
• where DEST or an education provider states in writing that they have concerns about errors and/or inappropriate actions or omissions in the process leading to the non-compliance and the reporting thereof. This may include concerns in relation to monitoring of the student, the complaints handling and appeals process and/or the certification and reporting process. In particular, decision-makers should give due regard to the following matters and make further inquiries as appropriate:
• if the education provider has failed to accurately monitor the student’s course progress or attendance;
• if the education provider has failed to give the student access to a complaints handling and appeals process as required under standard 8 of the National Code 2007.
…
6. Decision-makers must consider all of the facts of a case in total. The weight to be given to relevant matters is a matter for decision-makers. Decision-makers must come to their own view as to whether they are satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
Direction No.61 obviously has continued relevance to student visas subject to the transitional arrangements referred to in paragraph 14 above.
Consideration
The hearing before the Tribunal was a hearing de novo: see SAAZ v Minister for Immigration [2002] FCA 791. The “review” spoken of in s.348(2) and the powers of the Tribunal granted by s.349 to exercise all the powers and discretions conferred on the primary decision-maker indicate that the review which the Tribunal is directed to undertake is one involving its standing in the shoes of the Delegate of the First Respondent in considering afresh the application for a student visa: SAAZ (supra) ([19]-[20]) per Mansfield J.
In my view this means that the Tribunal in its review of the Delegate’s decision in this case had to take account of the repeal of reg.2.43(2)(b). The Tribunal was no longer required or indeed entitled to have regard to “exceptional circumstances”. Its discretion had been enlarged and it was no longer trammelled by having to find “exceptional circumstances” in order to overcome the mandatory cancellation of the Student Visa for breach of cond.8202 which had been the position pertaining for the Delegate as at 22 January 2013.
This view of the matter accords with the well settled rule applying to appeal courts to the effect that whether the relevant appeal is by way of rehearing de novo or re-hearing (but not an appeal in the strict sense) the relevant appeal court must determine the appeal according to the law that applies when the appeal is heard.
In Traut v Faustman Bros Pty Ltd (1983) 48 ALR 313 at 321 Lockhart J said:
Appeals are frequently described as falling into three classifications: appeals stricto sensu, appeals by way of rehearing and appeals de novo Upon an appeal stricto sensu the court to which the appeal is brought determines whether the judgment appealed from was right on the evidence before the lower court. The only judgment that can be given on such an appeal is one that ought to have been given at the original hearing: Quilter v Mapleson (1882) 9 QBD 672, per Jessel MR (at 676).
An appeal by way of rehearing is generally taken to be an appeal which involves rehearing the proceeding at the date of the appeal “… but on a rehearing such a judgment may be given as ought to be given if the case came at that time before the court of first instance”: per Jessel MR in Quilter v Mapleson, supra. The court hearing the appeal must decide the appeal by applying the law as it then exists to the circumstances as they then exist: Attorney-General v Birmingham, Tame and Rea District Drainage Board [1912] AC 788 at 801–2; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107–9; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 14 ALR 174 ; 135 CLR 616, per Mason J at 619 and 620. An appeal by way of rehearing is, generally speaking, a trial over again on the evidence used in the court below with a special power to receive further evidence, but that evidence is essentially to bring the matter up to date. In the English Court of Appeal “all appeals are by way of rehearing, that is by trial over again, on the evidence used in the court below; but there is special power to receive further evidence”: Re Chennell; Jones v Chennell (1878) 8 Ch D 492, per Jessel MR, at 505. It is in this sense that the phrase “appeal by way of rehearing” is generally understood. The reception of further evidence is, however, governed by the particular statutes or rules which define the powers of the appellate court.
An appeal “de novo” is really a fresh or original hearing. Sometimes the complainant or informant begins and the appeal is an appeal in name only. The usual onus that lies on an appellant does not lie on him.
To similar effect Dawson J in Harris v Caladine (1991) 172 CLR 84 at 125 said:
A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again: see Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. (93); Quilter v. Mapleson (94); and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (95).
In Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Callinan J at 241-242 ([119]) referred to the judgment of Glass JA in Turnbull v NSW Medical Board (1976) 2 NSWLR 281 where at 232 Glass JA speaking of appeals by way of re-hearing said that:
If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in the light of the circumstances which then exist, changes in the law will be regarded: Ex parte Currie; Re Dempsey (1968) 70 SR (NSW) 1; Edwards v Noble (1971) 125 CLR 296 at 304 .
In the circumstances, I am of the view that Direction No.38 (or Direction No.61) was not applicable to decisions to cancel student visas for breach of cond.8202 after the repeal of reg.2.43(2)(b)(ii) from 13 April 2013, except for those persons holding a student visa and falling within the operation of the transitional arrangements referred to in paragraph 14 above.
The fact is that, as of 13 April 2013, the Applicant’s application for review to the Tribunal was no longer subject to a mandated cancellation of his Student Visa under s.116(3) of the Act unless the Tribunal was satisfied that there were exceptional circumstances beyond the Applicant’s control.
Rather, the discretion of the Tribunal was now unrestricted and at large, except for having regard to the matters in the Department’s Procedures Advice Manual (PAM 3) as described in paragraph 12 of the Tribunal’s Decision Record. There was no longer any requirement or need for the Tribunal to consider “exceptional circumstances” or
“prescribed circumstances” under s.116(3) at all. All this was to the advantage of the Applicant. Unfortunately for the Applicant, however, the Tribunal in the exercise of its widened discretion came to the view that the Student Visa should be cancelled.
Ground 2 of the Further Amended Application was not pressed by Mr Kumar.
Conclusion
The Applicant has not established that the decision of the Tribunal is affected by jurisdictional error. I will order that the Application be dismissed and I will hear the parties as to costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 25 May 2016
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