Singh v Minister for Immigration
[2015] FCCA 3021
•12 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3021 |
| Catchwords: MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal erred in its interpretation of the concept of “substantial compliance” – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 476 Migration Regulations 1994 (Cth), Schedule 2, Schedule 8 |
| Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167; (2006) 156 FCR 199 Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258 Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007 Singh v Minister for Immigration & Anor [2011] FMCA 972 Ramasahayam v Minister for Immigration and Border Protection [2014] FCA 498 Kumar v Minister For Immigration & Anor [2011] FMCA 741 |
| Applicant: | SATNAM SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 918 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 27 July 2015 |
| Date of Last Submission: | 27 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Applicant: | Success Lawyers & Barristers |
| Solicitors for the Respondents: | Ms E Warner Knight of Australian Government Solicitor |
ORDERS
The second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 3 April 2014 and amended on 3 June 2014 and further amended on 12 November 2014 is dismissed.
The applicant pay the first respondent’s cost set in the amount of $5500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 918 of 2014
| SATNAM SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 3 April 2014, amended on 3 June 2014, and further amended on 12 November 2014, seeking review of the decision of the then Migration Review Tribunal (now the Administrative Appeals Tribunal ) (“the Tribunal”) made on 3 March 2014 which affirmed the decision of the Minister’s delegate to refuse the grant of a Student (Temporary) (Class TU) visa (“the visa”) to Mr Satnam Singh (“the applicant”).
Background
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister in these proceedings (“Court Book” – “CB” (“RE1”)).
Since his arrival in Australia, the applicant has held two previous student visas. The more recent of these two was granted on 13 September 2010 and was valid until 31 December 2012. This visa was subject to a number of conditions, including that the applicant achieve satisfactory educational course progress. Relevantly, this was condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations”).
The applicant had been enrolled in an Advanced Diploma of Management at the Australian Hair and Beauty College. That course commenced on 31 October 2011 and was scheduled to end on 31 October 2012. On 17 August 2012, the course provider certified, pursuant to the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”), that the applicant had not achieved satisfactory course progress.
The applicant applied for the visa on 17 December 2012 (CB 1 to CB 8). The delegate refused the grant of the visa and notified the applicant of this decision on 3 April 2013 (CB 32 to CB 40).
The basis for the refusal was that the applicant had not satisfied cl.572.235 of Schedule 2 to the Regulations, which requires compliance with any conditions attached to the last substantive visa held by the visa applicant. One such condition was 8202(3) of the Regulations. The applicant did not satisfy this condition, which attached to his previously held visa, because his education provider had certified that he had not achieved satisfactory course progress. The education provider had certified this in a notice issued under s.20 of the ESOS Act, and with reference to s.19 of that Act.
Clause 572.225 of Schedule 2 to the Regulations was, at the relevant time, in the following terms (see respondent’s written submissions at [7]):
“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.”
Condition 8202(3) of the Regulations was in the following terms (see respondent’s written submissions at [8]):
“(3) 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; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;…”
The applicant applied for review to the Tribunal on 22 April 2013 (CB 41 to CB 52). The Tribunal found that the education provider had certified that the applicant had not achieved satisfactory progress in his educational course. Further, it found that this certificate was issued at a time when the applicant was the holder of a visa which was subject to a condition that he achieve satisfactory course progress.
The Tribunal considered the question of substantial compliance with conditions attaching or applicable to visas, and, as it related to the applicant’s circumstances. The Tribunal concluded ([47] at CB 154):
“As the applicant’s education provider has certified the applicant as not achieving satisfactory course progress for the purposes of condition 8202(3), the Tribunal finds that the applicant did not comply with condition 8202(3) of his last held substantive visa. Applying the relevant case law, the requirement of an absence of a relevant certification of unsatisfactory course progress or unsatisfactory course attendance by the education provider is one to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not. Where an applicant has breached condition 8202(3) therefore, as in this case, there is no room for consideration of the kinds of factors referred to in Kim v Witton or the circumstances relating to the certification. The substantial compliance criterion is not satisfied for the reasons explained in Jayasekara.”
In reaching this conclusion the Tribunal took into account the applicant’s evidence to it that the delegate (when considering the question of the cancellation of his previous visa) had accepted the applicant’s explanation for the events leading to the certification being issued. That acceptance meant that the previous visa had not been cancelled (see [44] at CB 153).
The Tribunal found that what was relevant was the certificate issued by the education provider. The existence of that certification meant the applicant did not comply with condition 8202(3)(a) of the Regulations which had been attached to his previously held visa. Given this, the Tribunal found that the applicant could not meet cl.572.235 of the Regulations and affirmed the delegate’s decision on this basis.
Application before the Court
The grounds of the further amended application are in the following terms:
“GROUND 1
The Tribunal committed jurisdictional erred in the interpretation of substantial compliance when it failed to properly consider and take into account the entirety of the period in which the Applicant last held substantive visa .
Particulars
(i) The Tribunal stated (CB 154; MRT decision, p9 at [47]: “... it finds that the applicant did not comply with condition 8202(3) of his last held substantive visa …”
(ii) The Tribunal erred in interpretation of whether there was substantial compliance in that:
(a) the certification by Australian Hair & Beauty College reported closer towards the end of the course and has not taken into account entirety of the courses completed to make a finding that the Applicant had not substantially complied;
(b) the Applicant was continually enrolled in courses pursuant to the substantive visa. The Tribunal erred in its interpretation of the Clause 572.235
(iii) Failing to take into account the entirety of the courses enrolled in before / after that certification for the purposes of determining substantial compliance and the multiple courses over period of the substantive visa conditions;
(iv) Erred in reliance on Jayasekara’s case (CB 154; MRT decision, p9 at [47]) as not permitting the Tribunal to make proper enquiries and take all factors stated in Kim v Witton as to substantial compliance.
GROUND 2
The Tribunal committed jurisdictional error when it failed to properly consider substantial compliance.
Particulars
(i) The Tribunal stated (CB 154, MRT decision, p9 at [47]: “... it finds that the applicant did not comply with condition 8202(3) of his last held substantive visa. .... the concept of substantial compliance has no logical application ...” and erred in not considering factors stated in Kim v Witton.
(ii) The Tribunal erred in its interpretation of the provision when it conflated the test relating to substantial compliance with condition 8202 with the test required to consider substantial compliance. The Tribunal primarily accepting the previous certification as equating with the task that it was carrying out; that is, to make firm findings of facts and address the requisite law in relation to substantial compliance.”
[Errors in the original.]
Consideration
Ground one, as pleaded, complains that the Tribunal’s decision fell into jurisdictional error because the Tribunal erred in its interpretation of “substantial compliance”. The particulars, and the written and oral submissions before the Court, sought to explain this by raising a number of elements.
However, at the heart of the applicant’s complaint about the Tribunal’s decision sits the proposition urged in submissions that the Tribunal erred in relying on Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167; (2006) 156 FCR 199 (“Jayasekara”), which the applicant says led to the Tribunal not making proper enquiries about the applicant’s circumstances and failing to take into account the elements referred to in Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258 (“Kim”) as to the question of “substantial compliance”.
In essence, I understood the applicant’s relevant argument, in oral submissions before the Court, to commence with the Tribunal’s finding that the applicant did not comply with condition 8202(3) of the Regulations. The applicant argued that the only “criterion” that the Tribunal considered in making this finding was the existence of the education provider’s certificate. The applicant says that the error was that the Tribunal should have looked at other “criteria”. I ultimately understood the applicant’s use of the word “criterion” or “criteria” to mean “circumstance” or “circumstances”
The answer to the applicant’s ground one is to be found with the majority judgment in Jayasekara (per Heerey and Sundberg JJ). I respectfully understood the relevant principle, in relation to condition 8202(3) of the Regulations, to be that the relevant part of condition 8202 of the Regulations is not susceptible to the notion of “substantial compliance”. That is, the relevant question for the decision maker is whether or not condition 8202(3) of the Regulations has been complied with. Essentially, there is either a certification by the relevant education provider as to satisfactory course progress, or there is not.
The Court explained in Jayasekara (at [14] – [16]):
“[14] Turning to condition 8202(3), we note first that counsel accepted that the four paragraphs of the condition are cumulative; there would not be substantial compliance if an applicant satisfied three paragraphs.
[15] The substantial compliance requirement might, as counsel’s argument suggests, be apt in the case of par (c) where the condition is expressed in terms of the decision-maker being satisfied of a particular percentage of contact hours. However, in the present case it is not suggested there was any certificate at all. There was thus no compliance, let alone substantial compliance. Still less could reasons or explanations for non-compliance amount to compliance, substantial or otherwise.
[16] There is an obvious policy behind the way the condition is framed. Questions of academic progress should be left to the judgment of the education provider rather than a Departmental decision-maker or the Tribunal, who are less well fitted to make such judgments: Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 at [4].”
That reasoning, while deriving from, and directed to, an earlier form of condition 8202(3) of the Regulations, applies equally to the current version, which is similar, as it relates to satisfactory course progress (see Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007 per North J at [11] – [18] and Singh v Minister for Immigration & Anor [2011] FMCA 972 to which the Tribunal had regard, see [36] at CB 152). See further Ramasahayam v Minister for Immigration and Border Protection [2014] FCA 498 per Tracey J at [16].
Before the Court the applicant submitted that the circumstances in Jayasekara are distinguishable from the circumstances in the current case. Notwithstanding that submission, the applicant then submitted that the two cases were “very similar”. It appeared, at best, that the point of distinction was said to be that in the current case, there was documentation before the delegate from the education provider that was said to provide a “satisfactory explanation” for the applicant’s conduct prior to the issuing of the certificate.
This “satisfactory explanation” was said to be in relation to the question of the cancellation of the applicant’s previously held visa, which was the visa to which condition 8202(3) attached.
The applicant’s argument that flowed from this was that the Tribunal erred by not taking into account the fact that a Ministerial delegate accepted the applicant’s explanation for his unsatisfactory course progress and did not cancel the previous visa.
In the circumstances, the applicant’s complaint that the Tribunal did not take this into account must be seen as an argument that the Tribunal was not persuaded by it. This is because the Tribunal did consider this same argument which the applicant now seeks to repeat before the Court (see [20] at CB 149 to [25] at CB 150 and [39] at CB 152 to [40] at CB 153 and [46] at CB 153 to CB 154).
Ultimately, the Tribunal found that ([44] at CB 153):
“In the Tribunal’s view, the evidence given by the applicant that he should not have been certified, or issues relating to the Department’s subsequent decision not to cancel his visa, do not provide a basis for the Tribunal to find that the certification does not stand.”
This led to the conclusion at [47] (CB 154) set out at [10] above.
Given relevant authority above, there is no legal error in the Tribunal’s conclusion. As the Minister submits, the issue revolves around the existence or otherwise of a certificate from the education provider. As the Tribunal correctly understood, once it found that the certificate was issued, and remained in existence, the Tribunal was bound to come to the conclusion that it did. It was not open to the Tribunal to “look behind” the validity of the certificate (see the references to Kim, and Kumar v Minister For Immigration & Anor [2011] FMCA 741 per Jarrett FM, at [43] at CB 154))
The applicant’s argument appears to note, but not recognise, the consequence of the distinction between the relevant question for the Tribunal (was there a certificate, or not, such as to be caught by condition 8202(3)) and the separate question for the Minister’s delegate, in considering whether to cancel the previously held visa pursuant to s.116 of the Act. The Tribunal understood this distinction (see [46] at CB 153 to CB 154). There is no legal error in the Tribunal’s approach in this regard.
On the central issue of the certificate, the current circumstances are not distinguishable from the reasoning of the majority in Jayasekara. In all, ground one is not made out.
Ground two asserts that the Tribunal fell into jurisdictional error when it failed to properly consider the concept of “substantial compliance”. In essence, ground two makes the same complaint as ground one.
The particulars, however, direct attention to the proposition that the Tribunal erred in not considering the factors stated in Kim. For the remainder, the applicant’s particulars and his submissions before the Court, repeated the complaint that the Tribunal “accepted” the certification, without separately addressing the other circumstances before it, in considering substantial compliance.
This argument was also an argument put to, and considered by, the Tribunal (see [47] at CB 154). The Tribunal’s conclusion that the current case had “no room” for consideration of the factors referred to in Kim does not reveal jurisdictional error.
In Kim, the relevant condition was one which allowed for the consideration of the concept of “substantial compliance”. In Jayasekara the Full Court held that, to the extent relevant, a similar condition as in the current case could not be the subject of substantial compliance.
The Full Court explained this in Jayasekara at [17]:
“Baidakova and the earlier decision referred to by Katz J in that case, Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258 (Sackville J) dealt with different conditions, to which a substantial compliance criterion could be applied. In Baidakova the condition required a certain percentage of class attendance; in Kim, it was a condition requiring the temporary entry permit holder not to work.”
In all, the Tribunal did not ask itself the wrong question or apply the incorrect law as the applicant now asserts. There is no legal error as asserted in ground two.
Conclusion
The grounds of the further amended application are not made out. The application should be dismissed. I will make the order accordingly.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 12 November 2015
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