Singh v Minister for Immigration & Anor
[2012] FMCA 821
•12 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 821 |
| MIGRATION – Judicial review – Migration Review Tribunal – subclass 572 visa – visa cancelled for non-compliance with visa condition – unsatisfactory course attendance – whether there were exceptional circumstances beyond the applicant’s control – National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students – certification by education provider – whether there had been a denial of procedural fairness – whether the applicant was an accepted student – whether there could be substantial compliance with the visa conditions – substantial compliance not permitted – application dismissed. |
| Education Services for Overseas Students Act 2000 (Cth), ss.5, 19, 20, 40 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students |
| Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 Jayasekara v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 199 Kim v Witton (1995) 59 FCR 258 Liu v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 228 Liu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 49 Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 180 Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 Mo v Minister for Immigration and Citizenship [2009] FMCA 1026 Patel v Minister for Immigration and Citizenship [2012] FCA 958 Patel v Minister for Immigration and Citizenship [2011] FMCA 112 SHIH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1021 Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60 |
| Applicant: | BALRAJ SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 166 of 2010 |
| Judgment of: | Burnett FM |
| Hearing date: | 4 August 2010 |
| Date of Last Submission: | 4 August 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 12 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Fryberg |
| Solicitors for the Applicant: | McInnes Wilson Lawyers |
| Counsel for the Respondents: | Mr Bickford |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Subject to any other application being made by either party within seven (7) days of the date of this order, direct that within seven (7) days of the delivery of this judgment, the applicant pay the respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 166 of 2010
| BALRAJ SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of India, was granted a Subclass 572 Student (Temporary) (Class TU) visa subject to Condition 8202 on 18 June 2007. On 8 July 2009 he then applied for a subsequent Subclass 572 Student (Temporary) (Class TU) visa. On 29 July 2009, the applicant’s education provider, the Metro College of Technology (MCT) issued him with a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) stating that the applicant had not complied with Condition 8202 of the visa issued on 18 June 2007 in that he had failed to achieve satisfactory course attendance.
Accordingly, the delegate of the Minister decided to refuse the grant of the second Subclass 572 Student (Temporary) (Class TU) visa on the basis that the applicant did not satisfy subclause 572.235 of Schedule 2 to the Migration Regulations 1994 (Cth) because he had not complied substantially with Condition 8202 of his first visa.
On 19 September 2009, the applicant applied to the Migration Review Tribunal for review of the delegate’s decision.
On 28 September 2009, the Department notified the applicant via email that no further action would be taken by it in respect of the s.20 notice pertaining to his first visa, as MCT had failed to follow the correct procedures and reporting processes. At the time of that email the applicant was the holder of a bridging visa, as the original visa had expired on 19 August 2009. The applicant’s representatives later submitted to the Tribunal that notification from MCT had been made in error as it failed to issue certain warning letters. It was submitted that this was acknowledged by the Department’s email of 28 September 2009 and, in addition, MCT had failed to comply with other requirements under the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students, and that there were exceptional circumstances beyond the applicant’s control.
The Tribunal found that MCT had certified the applicant as not achieving satisfactory course attendance and, following the reasoning of the Full Court in Jayasekara v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 199, determined that Condition 8202 was not capable of substantial compliance, that is, one either meets the requirements of Condition 8202 or one does not. It follows that a certificate for non-compliance had issued, the Condition had been breached and subclause 572.235 had not been met. Accordingly, the Tribunal, following the decision in Mo v Minister for Immigration and Citizenship [2009] FMCA 1026, held that the only task for the decision maker was to determine whether a certificate on its face engaged Condition 8202. It held that the task should not include a requirement that the decision maker go behind or enquire into the validity of such a certificate. Accordingly, in affirming the delegate’s decision it determined that the applicant had not complied substantially with the conditions of the last held visa in that he had not satisfied Condition 8202.
On 24 February 2010, the applicant applied for review to this Court of the Tribunal’s decision. Although the matter came on for hearing and was heard on 4 August 2010, I have withheld delivering a decision on this matter pending a determination of the Federal Court of its appeal in the matter of Patel v Minister for Immigration and Citizenship [2011] FMCA 112. In Patel, an identical issue arose regarding one of the principal issues in this application for consideration. The issue there concerned the nature of the task for a decision maker presented with a certificate from an education provider stating that an applicant had not complied substantially with Condition 8202 of his previous visa.
In the decision of Patel v Minister for Immigration and Citizenship [2012] FCA 958, Collier J, in dismissing the appeal, concluded at [74]:
“… It was not the role of the Tribunal to find that there was a valid certification by Griffith University – once the evidence established that a notice and certificate had been issued by the University which was valid on its face, there was no role for the Tribunal in looking behind the notice.”
Regulatory Background
Section 65 of the Migration Act 1958 (Cth) (the Act) deals with decisions to grant or refuse to grant a visa, and relevantly provides:
“Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
…;
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
…
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.”
Section 116 of the Act, which deals with the cancellation of visas, relevantly provides:
“(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a 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.”
So far as is relevant, regulation 2.43 provides:
“…
(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:
…
(ii) that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.”
Condition 8202, as was applicable at the time, provided:
“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) The holder meets requirements of this subclause if:
(a) the holder is enrolled in a registered course …
(3) A holder meets 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;
(b) The education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) Standard 11 of the National Code of Practice of Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(4) In the case of a holder of a subclass 560 visa who is an AusAid student or the holder of a subclass 576 (AusAid or Defence Sector) visa – the holder is enrolled in a full-time course of studying or training.”
The Subclass 572 visa deals with Vocational Education and Training Sector visas. Subclause 572.2 deals with the primary criteria and subclause 572.21 with the criteria to be satisfied at the time of application. Subclause 572.22 deals with criteria to be satisfied at the time of decision. Materially, at the time of decision subclause 572.235 provided:
“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.”
The ESOS Act provided for the establishment of the National Code. Its purpose was to provide nationally consistent standards for the registration and conduct of registered providers and the conduct of persons who deliver educational services on behalf of registered providers. Section 40 of the Act provided that the only legal effect of a National Code would be the effects that the Act expressly provided for.
Standard 11 of the National Code deals with monitoring attendance. The outcome described in Standard 11 is as follows:
“Registered providers systematically monitor students’ compliance with student visa conditions relating to attendance. Registered providers are proactive in notifying and counselling students who are at risk of failing to meet attendance requirements. Registered providers report students, under section 19 of the ESOS Act, who have breached the attendance requirements.”
Section 19 of the ESOS Act relevantly provides:
“Giving information about accepted students
…
(2) A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.”
Section 20 is also relevant. It provides:
“Sending students notice of visa breaches
(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
…
(2) The registered provider must send the notice as soon as practicable after the breach.
…”
Proceedings before the Tribunal
In its decision, the Tribunal noted at paragraph 17 that the delegate had decided that the applicant had not complied substantially with Condition 8202 of his Subclass 572 Vocational Education and Training Sector visa on the basis of notice given to it on 29 July 2009 by MCT that the applicant had not complied with the conditions as he failed to achieve satisfactory course attendance in his Certificate III in Food Processing (Retail Baking – Cake and Pastry) course. The Tribunal gave the applicant notice pursuant to s.359A of the Act inviting from him comments on information that it considered would be part of the reason for affirming the decision under review. That is the information that on 29 July 2009 MCT certified that for his Certificate III in Food Processing (Retail Baking – Cake and Pastry) course the applicant had not achieved satisfactory course attendance and may therefore not have complied with Condition 8202.
The applicant submitted to the Tribunal that he had not received notification from the provider regarding his attendance; that he had maintained attendance above 70%; that the education provider had not followed the correct processes in terms of reporting non-compliance; and that as his visa had already been cancelled it was beyond the scope of the Department to reinstate the visa. He contended that it was within the power of the Tribunal to remit the application for reconsideration by the student section in the Department.
In its findings the Tribunal concluded that the issue was whether, at the time of the decision, the applicant had complied substantially with Condition 8202 of his Subclass 572 Vocational Education and Training Sector visa. It concluded at paragraph 25 that the education provider, MCT, had certified the applicant as not achieving satisfactory course attendance for the purposes of Condition 8202(3)(b) and that that matter was essentially one of fact, with the condition either being satisfied or not. The Tribunal noted the applicant’s contention that there had been substantial compliance but, consistent with authority, rejected that contention.
The Tribunal also entertained submissions made on the applicant’s behalf that there were exceptional circumstances beyond the applicant’s control leading to his non-attendance. However, it determined that “while these are matters which would be relevant to any consideration of the cancellation of the applicant’s Subclass 572 Vocational Education and Training Sector visa (r.2.43(2)(b)(ii)(B)), the Tribunal does not consider that they are relevant to the issue of compliance with Condition 8202(3)(b) per se. The issue of compliance is determined by the certification from the education provider.”[1] Furthermore, the Tribunal did not accept the applicant’s submissions that a student will not be in breach of Condition 8202 if an education provider has not complied with the relevant standard of the National Code, noting that the only task for the decision maker is to determine that a certificate on its face engages Condition 8202; “there is no requirement to “go behind” a Condition 8202(3) certificate, or to enquire into its validity.”[2]
[1] Tribunal at [26].
[2] Tribunal at [27].
It follows that the Tribunal refused the applicant’s application.
Grounds of Review
The applicant, in its application to this Court, sought that the Tribunal’s order be set aside and the matter remitted to a differently constituted Tribunal, to be heard and decided according to law. The applicant contended five grounds. They were as follows:
“Grounds of Application
1. The Tribunal fell into jurisdictional error by misdirecting itself as to the test to be applied to the case.
Particulars
(a) The Tribunal applied the test in the decision of Jayasekara v MIMA (2006) 156 FCR 1999 (Jayasekara) rather than directing itself to the test of substantial compliance as stated in Kim v Witton (1995) 59 FCR 258 (Witton)
2. By applying the test in Jayasekara, the Tribunal failed to take into account relevant factors.
(a) The Tribunal failed to consider that the Applicant’s absences were due to medical reasons;
(b) The Tribunal failed to consider that the Education Provider did not follow the requirements set out in the relevant National Code;
(c) The Tribunal failed to consider that the DIAC advised the Applicant that it would take no further action against the Applicant in relation to the certificate provided by the Education Provider;
(d) The Tribunal failed to consider that the Applicant had substantially complied with the attendance required of him pursuant to his visa.
3. The Tribunal’s decision amounts to a denial of procedural fairness or a breach of the rules of natural justice in that by failing to set aside a decision of the delegate to refuse to grant the Applicant a Student (Temporary) (Class TU) Visa (the Second Visa) under s.65 of the Migration Act 1958 (the Act) the Tribunal committed a jurisdictional error of law.
Particulars
(a) The Tribunal fettered its discretion through adherence to a principle in Jayasekara by finding the Applicant’s “substantial compliance” with condition 8202 of his previous Subclass 572 Vocational Education and training Sector Visa had no logical application in the hearing when as a mater of law the tribunal was not bound by such principle.
(b) Further in fettering its discretion and by applying the decision in Jayakesara the Tribunal failed to consider the Applicant’s evidence demonstrating substantial compliance with the condition relating to course attendance at the Metro College (“the education provider”) and unchallenged evidence that the Applicant held a certificate from the education provider certifying that satisfactory academic results and course completion had been achieved.
4. Further, the Tribunal has denied the Applicant procedural fairness or natural justice by either taking irrelevant considerations into account or failing to take relevant considerations into account, namely unchallenged evidence before it showing the Applicant had substantial compliance with condition 8202(3)(b) of the Applicant’s previous Subclass 572 Vocational Education and Training Sector Visa (the First Visa). In failing to take the relevant considerations into account as to whether the Applicant has complied substantially with the condition pursuant to cl.572.235, set out in part 572 of Schedule 2 of the Migration Regulations 1994 the Tribunal has made a jurisdictional error of law.
(a) The Tribunal failed to consider the unchallenged evidence put before the Tribunal that the education provider did not implement any intervention strategy or other required measures pursuant to the relevant National Code;
(b) The Tribunal failed to consider the unchallenged evidence put before the Tribunal that the DIAC wrote to the Applicant stating that no further action would be taken in relation to the issue of non-attendance.
5. Further, the Tribunal’s decision was a denial of procedural fairness or was an exercise of power which was so unreasonable that no reasonable person could so exercise the power by failing to recognise an estoppel which was set up as between the Applicant and the respondent DIAC from 28 September 2009, under which the Applicant did not have any cause or expectation to investigate or challenge the validity of the certificate of non-compliance as issued by the education provider which was the pivotal issue upon which the Tribunal dismissed the application for review.”
Grounds 1, 2 and 3 – Misdirection as to the test to be applied
The applicant’s grounds 1, 2 and 3 turn upon the application of the decision in Jayasekara. It is appropriate that I deal with that matter first. This is the first of three matters focussed upon by the applicant in his written and oral submissions.
The applicant contends that the Tribunal applied the test of non-compliance in the decision in Jayasekara rather than directing itself to the test of substantial compliance as stated in Kim v Witton (1995) 59 FCR 258.
The applicant submitted that the non-compliance test in Jayasekara is distinguishable in this instance. It submitted that had it distinguished Jayasekara, then, consistent with Kim v Witton, the Tribunal ought to have considered whether there had been substantial compliance with the Condition, to which the broader considerations referred to in its application could then have been the subject of consideration.
It was contended that the test of substantial compliance is not a test that is applied to each and every condition of the visa, but that upon a proper construction of the wording, as it currently stands, “complied substantially” relates to the condition as a whole. Counsel for the applicant submitted that when there are multiple conditions to a visa it is possible for the applicant to comply substantially with the conditions while not complying with one, and possibly more, of those conditions. In that context, it was submitted that it makes sense of the legislation and addresses the problem identified by the majority in Jayasekara that there are some conditions to which the concept of substantial compliance is not applicable. Given, as it was contended, that a construction of the provision in the manner proposed by the applicant makes more sense, it was submitted that this interpretation should be preferred.
I do not agree with the applicant’s submissions. In Jayasekara, the majority noted that the conditions under review in that instance were materially different to the conditions under consideration in Kim v Witton to which a substantial compliance criterion could be applied.[3]
[3] At pg 203 para [17].
The history of these provisions was explained in the Minister’s submissions. In particular, it was noted that the legislation governing education providers and student visas was reformed with effect from 1 July 2007. The 2007 reforms to the ESOS Act were to impose upon education providers obligations under the Code relating to setting performance and attendance standards; monitoring performance and attendance; providing an appeal structure for determining whether those standards have been breached; and obliging education providers to report breaches of those standards to the Department of Education (and to students). It was submitted that the system was designed to mesh with the student visa regime under the Act through Condition 8202 and that, critically, the new scheme no longer required the Minister for Immigration to form views on attendance or academic progress at all, but rather this was now to be done by education providers. However, the system obliged education providers by Standards 10 and 11 of the Code and derivatively by s.19 of the ESOS Act to notify the Department of Education about a student who is not achieving satisfactory course progress or attendance. The act of notification under those circumstances constitutes a certification, which itself constitutes the breach of Condition 8202 by the visa holder. This is because the visa holder is required by Condition 8202(1) to meet the requirements of Condition 8202(3), which requires in substance that the student visa holder not to be subject to a certificate of this kind. Accordingly, it is the issue of a certificate for the purposes of the relevant standards of the Code that gives rise to the breach of Condition 8202.
Condition 8202(3), under consideration in Jayasekara, has a similar structure to the subject condition. Importantly, as with Jayasekara, there is no scope for operation of a distinction between strict compliance and substantial compliance on Condition 8202(3)(b). That is, the applicant has either been certified for not achieving satisfactory course attendance or he has not. In that regard, the majority adapted the observations of Katz J in Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 at [31], where his Honour noted:
“… Either the education provider has certified that the applicant’s academic results for the relevant period have been at least satisfactory or it has not. Discretionary factors of the kind to which Katz J referred in Baidakova and which are noted in the PAM may legitimately influence the education provider in deciding whether or not to certify that a result has been at least satisfactory but, in the absence of any certificate at all, those factors can have no bearing on the decision which the Tribunal or this Court is required to make.”[4]
[4] At para [5].
Their Honours in Jayasekara then proceeded to consider the scheme of Condition 8202 then before them and observed:
“Since the regulations include some conditions to which the concept of substantial compliance can have no logical application, the regulations are to be read as not admitting any qualification of substantial compliance in such cases. For example, in the present case the visa applicant must be the holder of an existing visa of a specified kind. Either that condition is satisfied or it is not.”[5]
[5] At para [12].
Condition 8202, then before the Court in Jayasekara, left the question of academic progress to be determined by the education provider rather than a Departmental decision maker or Tribunal. In any event, the absence of a certificate to that effect was considered to be one of “no compliance.” No question of substantial compliance arose.
In this case, the structure of Condition 8202 is similar. A requirement of the Condition is that the education provider has not issued a certificate in respect of the applicant for not achieving satisfactory course attendance. The applicant either complies or does not comply with that Condition. In this case, he did not comply and, accordingly, no question of substantial compliance can arise. Even if the four paragraphs were to be accepted as generating a cumulative requirement, “there would not be substantial compliance if an applicant satisfied three paragraphs.”[6]
Ground 2 – By applying the test in Jayasekara the Tribunal failed to take into account relevant factors
[6] Jayasekara at [14].
For the reasons given in respect of Ground 1, I do not accept that the Tribunal failed to take into account relevant factors. The only factor which was required to be considered by the Tribunal was whether or not the applicant was the subject of a certificate which on its face appeared valid. The matters complained of by the applicant were matters that go to the validity of the certificate. In the absence of any material to suggest that the certificate was invalid, the Tribunal proceeded correctly in acting upon the certificate. In other words, the Minister was not required to go behind the certificate: Patel v Minister for Immigrationand Citizenship [2012] FCA 958 at [56] – [57].
Ground 3 – The decision amounts to a denial of procedural fairness
The third ground advanced by the applicant is that the Tribunal denied him procedural fairness or breached rules of natural justice by failing to set aside the decision of the delegate, and thereby committed jurisdictional error. It was alleged that this occurred as the Tribunal fettered its discretion through its adherence to the principle in Jayasekara in finding “substantial compliance” with Condition 8202. For reasons given above, I reject this contention.
As the Full Court in Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 stated:
“The ordinary meaning of Visa Condition 8202(3) is that the holder of a relevant visa will be in breach of the visa following certification by the educational institution as to a visa holder’s non-attendance, and provision of that certification to the Department by the institution.”
In Maan, the Court was considering the same version of Condition 8202 as is applicable here. The concept of substantial compliance has no application here.
It was further submitted that the Tribunal fettered its discretion by failing to consider the applicant’s evidence demonstrating substantial compliance with a condition and its unchallenged evidence that the applicant held a certificate from the education provider certifying that satisfactory academic results and course completion had been achieved. In short, the applicant wished to go behind the certificate. For reasons given earlier, I reject this submission.
Ground 4 – Denial of procedural fairness or natural justice by failing to take relevant considerations into account
The applicant contends that the Tribunal denied him procedural fairness or natural justice by failing to take into account as a relevant consideration that he had complied substantially with the Condition pursuant to clause 572.235. The particulars of this ground were:
a)By failing to consider the unchallenged evidence put before it that the education provider did not implement any intervention strategy or other required measures pursuant to the National Code; and
b)That the Tribunal failed to consider the unchallenged evidence put before it that the Department wrote to the applicant stating that no further action would be taken in relation to the issue of non-attendance.
This ground was addressed by the applicant’s second argument in its written and oral submissions. In summary, it contended that the certificate was “invalid on its face” as the applicant was:
a)Not a student with the education provider at the time the certificate issued; and
b)The Minister had acknowledged that there had been a non-compliance by the certifier in issuing the certificate. It was contended that the acknowledgement rendered the certificate invalid.
The submission concerning the applicant not being a student was premised upon a construction of the provisions of the ESOS Act and the Conditions. The applicant contended that Condition 8202(3) invokes s.19(2) of the ESOS Act, which imposed an obligation upon the registered provider to “give the Secretary particulars of any breach by an accepted student” as soon as practicable after the breach occurs. The phrase “accepted student” is defined in s.5. It provides:
““accepted student” of a registered provider means a student (whether within or outside Australia):
(a) who is accepted for enrolment, or enrolled, in a course provided by the provider; and
(b) who is, or will be, required to hold a student visa to undertake or continue the course.”
The applicant contended that the definition linked “accepted student” to the provider and spoke of “prospective enrolment (“accepted for enrolment”)” or “current enrolment (“enrolled”).” In this case it contended that on 19 June 2009 the provider issued a “Final Record of Achievement” certifying that the applicant had passed the course that he had undertaken and that, as the record of achievement clearly stated the end date of the course as 19 June 2009, the applicant was no longer an “accepted student” within the meaning provided for in s.5 and s.19 of the ESOS Act. In the respondent’s submissions, it was contended that the arguments of the kind advanced by the applicant had previously been considered and failed. See Liu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 49 per Cooper J; Liu v Minister for Immigration and Indigenous Affairs (2005) 146 FCR 228 (Full Court) (appeal dismissed); Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 180 (special leave refused); see also Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60; SHIH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1021.
In Liu the applicant submitted that the certificate sent by an education provider pursuant to s.20 of the ESOS Act was invalid or ineffective because the applicant was no longer an accepted student of QUT and therefore it was beyond the power of QUT to give the applicant an effective notice for that purpose.
Concerning that point, Cooper J held that once an obligation arises on the education provider to send the requisite notice to the student, s.20 ESOS Act does not require that the student continue to be an accepted student of the provider at the time that the notice is sent for that notice to be effective. His Honour noted:
“The ESOS Act, in s.19 and s.20, does not require that the student remain an accepted student at all times after the obligation on QUT to give the requisite notice arose in order that any notice given by QUT is, for the purpose of s.19 and s.20, an effective notice. The object of s.19 and s.20 is to initiate processes to ensure that the future status of a student visa is addressed under the Migration Act, having regard to the breach of 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.”
Given that in this case the notice arose because of poor attendance, the applicant’s successful completion of the course was immaterial. As Cooper J observed, and as was affirmed by the Full Court, 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. This part of the fourth ground fails.
The second matter advanced was the positive acknowledgment by the Minister that there had been non-compliance by the certifier in issuing the certificate. The non-compliance was alleged to have arisen from an email forwarded by a compliance client services officer of the Department to the applicant on 24 September 2009. It stated:
“Dear Student,
You recently attended this office as you had been reported by Metro College for unsatisfactory attendance.
I am writing to advise you that there will be no further action in relation to this report as the department has found that Metro College did not follow the correct procedure in the reporting process.
Please note that if further information comes to notice, cancellation of your visa may be reconsidered.
…”
The applicant contends that legislation should be construed in such a way as to avoid absurd results. In this context, it was submitted that in relation to this particular condition and certification, to adopt an approach that the Minister should never go behind the certificate would lead to an absurdity.
Earlier in this judgment I addressed the effect of the certificate as determined by Collier J on appeal in Patel v Minister for Immigration and Citizenship (supra). While it is correct that the requirement of certification in Condition 8202 is not intended to be capricious, the fact remains that the legislative scheme invests in the education provider certain responsibilities. In that context the remedies open to an “accepted student” are to be directed to the education provider and not to the Minister.
The fact remains that as at the time of decision (18 August 2009) the Minister’s delegate had before him a certificate provided by MCT that he had not achieved satisfactory course attendance. There is nothing to suggest that on its face the Minister’s delegate ought to have been alert to its possible invalidity. The delegate’s decision was one made within its jurisdiction.
The applicant complains that it leads to an absurd result to adopt such a strict approach, as it is now acknowledged that despite the irregularity of the certificate the decision was valid. However, that submission ignores other remedies that the applicant has against the education provider in respect of its decision to issue the certificate, and which he ought to have pursued: Patel v Minister for Immigration and Citizenship (supra) at [38].
Ground 5 – Denial of procedural fairness in that the exercise of the power was so unreasonable that no reasonable person could have done so
The applicant’s submission on this ground is that no reasonable person exercising the power could have done so by failing to recognise the estoppel alleged. Here an estoppel was alleged to have arisen between the applicant and the respondent from 28 September 2009, following the email of that date. The email could not give rise to an estoppel. The Minister, by his delegate had already made and announced his decision. It took effect from that time and the applicant’s rights flowed from that decision. Before the applicant acted upon any statement made by a Departmental officer he had commenced his application for review (1 September 2009) and it follows that the applicant cannot demonstrate any action on his part founded on the Department’s email. However, and more importantly, a Court cannot relieve against non-compliance with a requirement which a statute intends shall be satisfied. See generally the discussion in Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 104-106. Here the statutory scheme is patent. Once a certificate issues, and non-compliance was not due to exceptional circumstances, the condition is not satisfied and the visa must be cancelled. This ground also fails.
Summary
The applicant’s application for review of a delegate’s decision on his visa application was unsuccessful. The initial decision was based upon non-compliance with an education provider’s certificate issued under Condition 8202. It later transpired that there were serious concerns about the regularity of the certificate. There is no suggestion that at the time of decision there was any basis for concern. The delegate was correct in acting upon the certificate. The Tribunal was correct in affirming the delegate’s decision.
Orders
Application dismissed.
Subject to any other application being made by either party within seven (7) days of the date of this order, direct that within seven (7) days of the delivery of this judgment, the applicant pay the respondent’s costs fixed in the sum of $6,471.00.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 12 September 2012
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