SINGH v Minister for Immigration
[2005] FMCA 1159
•18 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION | [2005] FMCA 1159 |
| MIGRATION – Application to review decision of Migration Review Tribunal – cancellation of student visa – condition 8202 – whether Tribunal failed to take into account relevant considerations – whether any defect in procedures of delegate ‘cured’ by Tribunal decision. |
| Migration Act 1958, ss.116, 119, 121 & 359 |
Tian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 238
Shrestha v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 64ALD 669
Minister for Immigration & Multicultural & Indigenous Affairs v Hou (2002) FCA 574
Gerhardt v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 495
Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170
Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1484
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 248
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58
Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1132
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
| Applicant: | PREETINDER SINGH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG2146 of 2003 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 July 2005 |
| Date for Last Submission: | 28 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2005 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms M. Allars |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the Migration Review Tribunal be joined as a respondent to the proceedings.
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2146 of 2003
| PREETINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
The applicant seeks review of a decision of the Migration Review Tribunal (the Tribunal) made on 17 September 2003 affirming a decision of a delegate of the respondent to cancel the applicant's Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) visa. Consistent with the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 the Tribunal should be joined as a respondent to the proceedings.
The applicant, who is a citizen of India, first entered Australia in January 1999 as the holder of a Subclass 560 Student visa. He subsequently held a number of Student and Bridging visas. In July 2002 the applicant commenced a Bachelor of Information Technology degree at the University of Ballarat (Sydney campus). He had previously attended a number of institutions without advising the respondent’s Department (DIMIA) of changes in his enrolment. The relevant visa, a Subclass 573 visa, was granted on 25 September 2002. This visa was cancelled on 28 April 2003 for breach of condition 8202 attached to the visa.
The applicant had attended an interview at the Canberra office of DIMIA on 23 April 2003. He expressed dissatisfaction with the University of Ballarat and stated that he had last attended classes in December 2002 before the examinations. He did not sit the examinations. He had decided to change universities. In this interview the Department issued a notice of intention to consider cancellation to the applicant stating that he appeared to have breached condition 8202 on his visa because his attendance at classes and his academic results appeared to be unsatisfactory. He was invited to attend an interview on 28 April 2003. The Department apparently obtained information from the Sydney campus of the University of Ballarat to the effect that the applicant had failed to enrol in 2003 and that his attendance was unsatisfactory (although there was no written notice from the University on the Departmental file).
According to a file note of the interview on 28 April 2003 the applicant told the delegate of the respondent that he had not enrolled at the University of Ballarat in 2003 but had come to Canberra to enrol in the University of Canberra. He had delayed the move because he had been bashed and robbed twice in three months in Sydney and had hurt his back. He presented five certificates for acupuncture during February, March and April 2003 certifying that he was unfit for school from
10 February 2003 to 11 April 2004(sic). The last of these certificates is dated 7 April 2004 but this appears to be an error and the Tribunal understood the period covered to be to 11 April 2003. The applicant also advised the delegate that he had not notified the University of Ballarat about changing to the University of Canberra. The delegate told the applicant that he was not enrolled or attending classes anywhere during this period.
Following the interview, the delegate proceeded to cancel the applicant's visa under s.116 of the Migration Act 1958 for the reason that he had breached condition 8202(2) because he was not currently enrolled and had failed to gain satisfactory academic results. The delegate recorded that the applicant had failed to restart study in February/March 2003 or contact the University of Ballarat and advise formally of his intention to change education providers. He had also failed to contact the Department, the University of Ballarat, or the University of Canberra while he was receiving acupuncture treatment for back injury.
The applicant sought review of the decision by the Tribunal. The Tribunal wrote to the applicant inviting him to comment on information it considered would be the reason or part of the reason for affirming a decision under review. This letter, of 9 July 2003, referred to a statement by the University of Ballarat that he had failed all courses in the semester ending in December 2002 and failed to restart in semester 2 in February/March 2003; to the information that he had failed to contact the University of Ballarat and advise in any formal manner of his intention to change education providers; to information that he was not enrolled in a course of study for the first semester of 2003 and had not provided confirmation of his current enrolment; and to the fact that he had failed to contact the Department or either University while receiving acupuncture treatment for a back injury. The Tribunal received a letter providing comments as requested on
25 July 2003. The applicant explained his reasons for seeking to change Universities, detailed the attacks and back injuries and treatment he had received and, relevantly, confirmed that he had not contacted the University of Canberra until April 2003 and then discovered it was too late to enrol in first semester 2003.
The applicant attended a Tribunal hearing. He told the Tribunal that he had received an offer from the University of Canberra to enrol in Semester 1 of 2003. He subsequently provided a copy of a letter of offer dated 2 December 2002 indicating that his study would begin on Monday 24 February 2003. He also told the Tribunal that he now had a letter of offer to begin in July 2003.
In its reasons for decision the Tribunal recorded that the delegate had issued a notice of intention to consider cancelling the visa which covered a possible breach of two aspects of condition 8202 being attendance of at least 80 per cent and satisfactory academic results. The notice did not refer to any failure to be enrolled in a registered course. However the visa was subsequently cancelled by the delegate on the ground that the applicant was not enrolled in a registered course (condition 8202(2)(a)) as well as because he did not obtain an academic result that was certified by his education provider as satisfactory (condition 8202(3)(b)). The Tribunal stated that it must consider whether the delegate followed the procedure set out in Subdivision E of the Migration Act 1958 (C’th) for the cancelling of visas under s.116. The Tribunal considered that it was possible under the Migration Act 1958 for the s.119 notice to be given orally. It suggested that what was important was that the applicant was advised of any adverse information and given an opportunity to comment. The Tribunal was satisfied that the issues of the applicant's failure to enrol and the fact that he was not studying at the time of the interview were discussed in the Departmental interview. It found that he was properly notified of the possible grounds for cancellation and the particulars of the breach of condition 8202.
The Tribunal went on to consider whether the applicant had complied with condition 8202. It noted that although, on the applicant's evidence, he did not pass the subjects he was enrolled in at the University of Ballarat, there was no confirmation on the file that the University of Ballarat had certified as to whether his results were unsatisfactory or satisfactory. He had been reported for failure to attend and for not enrolling in the next semester. On that basis the Tribunal found that it appeared that the University of Ballarat was prepared to re-admit the applicant and to that extent his academic result was satisfactory. It concluded that it was not able to make a finding that the applicant did not comply with condition 8202(3)(b).
However the Tribunal found that at the time of cancellation the applicant did not comply with the part of condition 8202 which required him to be enrolled in a registered course. It found that he had presented himself to begin the semester two months late, although he had provided evidence as to why this had occurred. The Tribunal had regard to his explanation but did not accept that the injury to the applicant's back prevented him from completing his enrolment on 10 February as required or at least from contacting the University of Canberra to advise of his delay. He was not enrolled in a registered course for a period of at least two months after he was expected to enrol.
The Tribunal found that at the time the visa was cancelled, and for a period of two months after the summer break, the review applicant was not enrolled in a registered course and was therefore in breach of condition 8202(2)(a). As he had not complied with condition 8202, pursuant to paragraph 116(1)(b) and sub-s.116(3) of the Migration Act1958 (C’th) his visa was liable to be cancelled. The Tribunal found that it did not have any discretion to set aside a visa cancellation where there had been a substantiated breach of condition 8202 and that once non-compliance was established, it was bound by the operation of s.116(3) and paragraph 2.43(2)(b) of the Migration Regulations to affirm the visa cancellation.
This application
The applicant sought review of the Tribunal decision by application filed in this Court on 14 October 2003. That application contains a number of generalised and unparticularised grounds. The applicant filed an amended application on 1 April 2004. At the commencement of the hearing the applicant told the Court that he no longer sought to rely on ground (a) (that the Tribunal failed to take into account a relevant consideration being his dissatisfaction with the provision of educational instruments by the management of the University of Ballarat). The only ground relied on was:
The Tribunal's satisfaction that the applicant breached the visa condition is based on the fact that was not applicable to the applicant.
The particulars of this ground set out the applicant's personal circumstances and contend that he should be given the benefit of the doubt and another chance since he was not working illegally and had paid a high amount of education costs without delay. He raised the fact that he was physically unfit, was taking medical treatment and was the victim of thugs and had reported these matters to the police. In oral submissions the applicant stated that he did not have much to say, that he was sick and that was why he could not enrol and that that had not been taken into account by the Tribunal.
The law
The relevant provisions of the Migration Act 1958 and Migration Regulations 1994 are as follows:
Section 116. Power to Cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)any circumstances which permitted the grant of the visa no longer exist; or
(b)its holder has not complied with the condition of the visa; or
…
(g)a prescribed ground for cancelling a visa applies to the holder;
…
(3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Regulation 2.43 of the Migration Regulations relevantly provides:
2.43 Grounds for Cancellation of Visa
…
(2)For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(b)in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
…
(ii)condition 8202.
It is not disputed that the applicable form of condition 8202 is as follows:
8202(1)The holder (other than the holder of a subclass 560 (student) visa who is an AUSAID student or the holder of a subclass 576 (AUSAID or defence sector) visa must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)…
(3)A holder meets the requirement of this subclause if:
(a)in the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80 per cent of the contact hours scheduled…
(b)in any other case - the holder achieves an academic result that is certified by the education provider to be at least satisfactory…
Conclusion
The ground relied on by the applicant (that the Tribunal failed to take certain facts into account) details factual claims about the applicant’s past situation, his previous compliance with work restrictions, payment of fees, that he was not aware of all the legal requirements of his visa, that he was physically unfit and taking medical treatment, the victim of thugs and mentally unable to bear the pain of break-up with his girlfriend and that he was keen to study.
The applicant seeks to re-agitate factual issues which were either for the Tribunal or which were not relevant to the issue of whether there was a breach of condition 8202(2)(a). Merits review is not available in this Court. The Tribunal did in fact take into account those factors which the decision records were raised in the hearing but it did not accept that the injury or circumstances of the applicant prevented him from travelling to Canberra to enrol at the proper time or at least from contacting the University to advise of the delay. More pertinently the applicant’s reasons for not being enrolled were not relevant to the issue to be determined by the Tribunal. The Tribunal notified the applicant in the letter sent to him under s.359A of the Migration Act 1958 on
9 July 2003 of the evidence in Departmental files which it considered would be the reason or part of the reason for finding that he was in breach of condition 8202 by reason of not being enrolled in a registered course of study. The applicant responded to this letter, but did not provide any evidence in support of a finding that he was enrolled. This was the critical issue. In Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 the Full Court of the Federal Court rejected an argument that an applicant only needed to substantially comply with condition 8202 (cf Shrestha v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 64 ALD 669). Their Honours referred to a number of decisions by single judges of the Federal Court rejecting the importation of a concept of substantial compliance into s.116(3) as a matter of statutory interpretation (see Minister for Immigration & Multicultural & Indigenous Affairs v Hou [2002] FCA 574, Gerhardt v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 495, and Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170).
At [65] in Tian their Honours observed about s.116(1) (which permits the Minister to cancel a visa for any of the reasons in that subsection):
In exercising that discretion, the Minister would have regard to all of the surrounding circumstances to determine whether it is appropriate to cancel a visa for any of the reasons in that sub-section.
However, their Honours found (at [66]) that s.116(3) does not permit the Minister to exercise any discretion at all. Their Honours continued:
If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the prescribed circumstances referred to in s.116(3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa.
In this case the part of condition 8202 that was in issue is condition 8202(2)(a) which is simply expressed as a requirement that the holder:
is enrolled in a registered course.
It makes no reference to, or allowance for, any reasons for the applicant's failure to be enrolled in a registered course. Because there was a failure to comply with condition 8202, Regulation 2.43(2) and s.116(3) applied. Cancellation was mandatory. Hence, as suggested by Bennett J in Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1484, any reasons for non-compliance with s.8202 were not relevant. (Also see Hou at [32] to [34] and Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1132.)
Similar circumstances were considered by Cooper J in Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170. In that case an applicant had not enrolled in a registered course in the semester current at the time of cancellation. Hence at the time of cancellation he was not enrolled in a registered course. The applicant claimed that he had applied to enrol in a different educational institution in a course commencing at a future time (and similarly the applicant in this instance made claims about future enrolment). It was contended for the applicant in Liu that the condition which required that “the holder is enrolled in the registered course” should not be construed in such a way that a temporary gap in enrolment meant that it was breached and that a literal construction should not be given to the condition. However this argument was rejected.
Cooper J held (at [19]) that the requirements in condition 8202 were cumulative and that:
In the context of condition 8202 enrolment in a course is a continuing requirement. It is a precondition to the later requirements of satisfactory attendance and academic achievement. Whether or not the holder of a student visa is enrolled in a full time course of study or is enrolled in a registered course, is a question of fact in each case.
On this basis it was held (at [20]) that the requirements of condition 8202 did not allow a visa holder to cease to be enrolled in a course. His Honour found that such construction was not inconsistent with the statutory purpose of the grant of student visas or with the terms of s.116(1) and s.116(3) of the Migration Act 1958. The approach in Liu may have significant consequences for an applicant who allows his enrolment to cease given that substantial compliance with condition 8202 does not suffice and that the reasons for any failure to comply are not relevant under s.116(3). However Liu is consistent with the decision in Tian to the effect that s.116(3) does not permit the decision-maker to exercise any discretion at all.
I note that no issue arises in this case about the application of condition 8202(2)(a) during vacation time. The Tribunal in this case made a finding of fact that the applicant was not enrolled in a registered course at the time the visa was cancelled (and that this was for a period of two months after the summer break). It was for this reason that it was satisfied that the applicant was in breach of condition 8202(2)(a) and that regulation 2.43 and s.116(3) of the Act required that his visa be cancelled. It has not been established that in making these findings the Tribunal fell into jurisdictional error as contended.
In the course of the hearing an issue arose as to the relevance, if any, of the fact that the visa was cancelled by the delegate of the respondent for a reason not included in the written notice of intention to consider cancellation provided to the applicant. The parties were given the opportunity to make further written submissions.
The written notice of intention to consider cancelling the applicant’s visa referred only to possible breaches of those aspects of condition 8202 relating to attendance of at least 80% and satisfactory academic results. However the visa was cancelled on another basis, being that the applicant was not enrolled in a registered course (condition 8202(2)(a)) as well as because he did not obtain an academic result that was certified by his education provider as satisfactory (condition 8202(3)(b)). In the Tribunal reasons for decision the Tribunal member recorded that it was clear that no written notice of the failure to be enrolled in a registered course was given to the applicant by the delegate as a possible ground for cancellation of the visa for breach of condition 8202. However the Tribunal was satisfied that the applicant was notified orally of adverse information and given an opportunity to comment and that this was a proper notification (see s.119(3) which provides for notification to be given orally).
The records of the delegate’s interviews with the applicant on 23 and 28 April 2003 suggest that it may only have been in the course of the later interview that the delegate discussed with the applicant his failure to re-enrol at the University of Ballarat and his delay in attending at the University of Canberra to enrol. Hence there may be a question about whether any invitation to comment met the statutory requirements (see s.119(1)(b) and s.121 as to specification of the place and time within which the applicant is to respond). However it is not necessary for me to determine whether the delegate complied with the procedural requirements of the Migration Act 1958 in ss.119, 120 and 121 before cancelling the visa. Even if the delegate’s decision was invalid because it did not follow the mandatory requirements of ss.119 and 121, the Tribunal had the power, and indeed the obligation, to conduct the full merits review provided for in the Migration Act. (See Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 248 and Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58.) As the Full Court of the Federal Court stated in Zubair at [32] “The Tribunal was, in consequence, able to ‘cure’ the defect in the delegate’s decision”: see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116.
Accordingly if there was any non-compliance by the delegate in the present case that would not have deprived the Tribunal of jurisdiction. The Tribunal statement that the legislation did not allow for the Tribunal to ‘cure’ a defect in the notification procedures (a statement made prior to the decisions of the Full Court of the Federal Court in Zubair and Ahmed) is not such as to constitute a jurisdictional error in circumstances where the Tribunal proceeded to carry out the necessary review exercising all of its powers under the Migration Act 1958 consistent with the approach in Zubair and Ahmed. The Tribunal had statutory authority. It was correct to proceed to deal with the review on the merits. No jurisdictional error has been established in the Tribunal procedures or in its decision in carrying out that review. Any defect in the delegate’s decision was ‘cured’ by such review.
As no jurisdictional error is established the decision is a privative clause decision to which s.474(1) of the Act applies and the application must be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 18 August 2005