TAMANG v Minister for Immigration
[2013] FCCA 450
•6 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAMANG v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 450 |
| Catchwords: MIGRATION – Judicial review of decision of the Migration Review Tribunal –Student (Temporary) (Class TU) Subclass 572 visa – certification that the Applicant had not achieved satisfactory course attendance – no error of law – application dismissed. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth), s.19 Migration Act 1958 (Cth), ss.65, 116, 349 Migration Amendment Regulations 2007 (Cth), 2.43(2) Migration Regulations 1994 (Cth), schs. 2, 8 |
| Cases cited: Alsunaid v Minister for Immigration and Anor [2011] FMCA 238 Casse and Ors v Minister for Immigration and Anor [2012] FMCA 1113 Chen v Minister for Immigration and Anor [2011] FMCA 177 Hassan v Minister for Immigration and Anor [2012] FMCA 155 Hassan v Minister for Immigration and Citizenship [2012] FCA 816 Hunter Resources Ltd v Melville (1988) 164 CLR 234 Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 167 Kaur v Minister for Immigration and Anor [2013] FMCA 7 Kim v Minister for Immigration and Anor [2011] FMCA 780 Musapeta v Minister for Immigration and Anor [2007] FMCA 729 Patel v Minister for Immigration and Citizenship [2012] FCA 958 Patel v Minister for Immigration and Anor [2011] FMCA 112 Purohit v Minister for Immigration and Anor [2012] FMCA 477 Singh v Minister for Immigration and Anor [2012] FMCA 821 Singh v Minister for Immigration and Anor [2011] FMCA 972 Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261 |
| Applicant: | BISHWA TAMANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 820 of 2012 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 5 March 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 6 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughan |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the First Respondent: | Mr Knowles |
| Solicitors for the First Respondent: | Clayton Utz |
THE COURT ORDERS THAT:
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 820 of 2012
| BISHWA TAMANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Second Respondent dated 5 June 2012. In its decision, the Migration Review Tribunal (‘the Tribunal’) confirmed a decision of a Delegate of the First Respondent (‘the Delegate’) to refuse to grant the Applicant a Student (Temporary) (Class TU) visa.
The Applicant relies upon an Amended Application filed by him on 1 February 2013 and Submissions filed 14 February 2013. The First Respondent relies upon a Response to Application filed 27 July 2012 in which it claims the decision of the Tribunal not to be affected by jurisdictional error and Submissions filed on behalf of the First Respondent filed 28 February 2013. The First Respondent has also filed a Court Book on 5 October 2012 which contains the decision record, the subject of judicial review.
The grounds of the application as relied upon by the Applicant and contained in the Amended Application filed 1 February 2013, are as follows:-
“1. The decision of the Tribunal (the Second Respondent) dated 6 June 2012 is affected by jurisdictional error because the Tribunal misunderstood and misapplied the criterion 572.235 of Part 572 of Schedule 2 of the Migration Regulations 1994 in respect of the application of that criterion to the condition 8202(3) which was attached to the visa previously held by the Applicant.
PARTICULARS
(a) The Tribunal misunderstood the nature of the condition 8202(3) which was attached [to] the Applicant’s previous visa as being a condition in respect of which “the concept of substantial compliance has no logical application”;
(b) Accordingly the Tribunal failed to consider whether the Applicant had ‘complied substantially’ with condition 8202(3) in respect of his previous visa; and
(c) The Tribunal erred because the form of condition 8202(3) which was applicable to the visa previously held by the Applicant was, in the circumstances, capable of ‘substantial compliance’ and the Applicant had substantially complied with that condition, thereby meeting criterion 572.235.
2. The decision of the Tribunal dated 6 June 2012 is affected by jurisdictional error because the because the (sic) Tribunal misunderstood and misapplied criterion 572.235 of Part 572 of Schedule 2 of the Migration Regulations 1994.
PARTICULARS
(a) The Tribunal was required to consider whether the Applicant had “complied substantially with the conditions that […] applied to the last of any substantive visas held by the applicant”;
(b) The effect of that criterion is to require the Tribunal to identify the conditions which applied to the Applicant’s last substantive visa and to determine whether the Applicant had “complied substantially” with those conditions overall;
(c) Instead the Tribunal wrongly considered the question whether the Applicant had “complied substantially” with each of the conditions that applied to “that visa with particular regard to condition 8202, and ignored the mandated task of assessing whether the Applicant had ‘complied substantially” overall with the conditions which applied.
3. Alternatively to Ground 2, the decision of the Tribunal dated 6 June 2012 is affected by jurisdictional error because the Tribunal failed to take into account a relevant consideration.
PARTICULARS
(a) The Tribunal was required to consider whether the Applicant had substantially complied with the condition 8202(3) attached to the visa he previously held;
(b) The condition requires the absence of certification by an education provider of the unsatisfactory course progress or unsatisfactory course attendance on the part of the visa holder;
(c) Such condition is capable of substantial compliance by a visa holder, in that the holder can do all in his or her capacity to avoid the certification of unsatisfactory progress or attendance, by progressing and attending as required;
(d) The Applicant provided the Tribunal with material supporting that he had substantially complied with the condition 8202(3) and that the contrary certification was in error;
(e) The Tribunal wrongly declined to consider that material.”
Background
The Applicant was born on 4 April 1988 and is a citizen of Nepal. On 26 January 2008, the Applicant entered Australia as the holder of a Student (Temporary) (Class TU) Subclass 572 visa (Vocational Education and Training Sector) (‘Subclass 572 visa’). The Subclass 572 visa was due to expire on 29 March 2008. On 29 March 2008, the Applicant was granted a further Subclass 572 visa. That visa was subject to a number of conditions which included condition 8202 which is set out in Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The Applicant enrolled in an Advanced Diploma of Hospitality Management course at the Australian Business College Proprietary Limited (trading as Hales Institute)(‘Hales Institute’).
On 21 August 2008, Hales Institute certified, for:-
a)s.19 of the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’); and
b)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training for Overseas Students 2007(‘the National Code 2007’);
that the Applicant had not achieved satisfactory course attendance in the course of study undertaken by him (being the Advanced Diploma in Hospitality Management). The Applicant asserts that the certification of not achieving satisfactory course attendance was wrong and that he attended more than 80 per cent of his classes.
The Applicant’s Subclass 572 visa expired on 15 March 2010. On that day, the Applicant applied for a further Subclass 572 visa. Accordingly, he was entitled to a Bridging A visa as a result of that application and continues to remain entitled to a Bridging A visa as a result of his judicial review proceedings.
On 14 April 2010, the Delegate refused to grant the Applicant a Subclass 572 visa. The Delegate relevantly found that the Applicant did not satisfy the visa criterion in cl.572.235 of Schedule 2 of the Regulations. That provision requires that:-
“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 Delegate found that the Applicant had not complied substantially with condition 8202 of Schedule 8 of the Regulations. In making this finding, the Delegate referred to the certification from the Gurkhas Institute of Technology Proprietary Limited (trading as Gurkhas Institute of Hospitality and Management) (‘Gurkhas Institute’) where that Institute had certified, for:-
a)s.19 of the ESOS Act; and
b)standard 11 of the National Code 2007;
that the Applicant had not achieved satisfactory course attendance in a course of study described as Certificate III in Hospitality (Commercial Cookery), being a further hospitality management course that the Applicant had enrolled in, in February 2009. The certification of the Gurkhas Institute was dated 13 April 2010.
On 6 May 2010, the Applicant applied to the Tribunal for review of the Delegate’s decision, being the refusal of the subsequent, Subclass 572 visa application.
On 2 May 2012, the Applicant’s representative provided a written submission to the Tribunal stating that the Delegate’s reliance on the certification of 13 April 2010 from the Gurkhas Institute was incorrect because at that date the Applicant was no longer the holder of a visa subject to condition 8202 of Schedule 8 of the Regulations. He was the holder of a Bridging A visa.
The Tribunal conducted a hearing on 3 May 2012. The Applicant was represented and gave evidence. The Tribunal noted the correctness of the written submission of the Applicant’s agent as referred to in the preceding paragraph. However, the Tribunal also considered the certification by Hales Institute of not achieving satisfactory course attendance dated 21 August 2008.
On 5 June 2012, the Tribunal affirmed the decision under review. The Tribunal was not satisfied that the Applicant met the criteria for the grant of a Subclass 572 visa and, in particular, the criterion in cl.572.235 of Schedule 8 of the Regulations. In this respect, the Tribunal found that the Applicant had not complied substantially with the conditions that applied to the last substantive visa held by him. The Tribunal found that the Applicant had not complied with condition 8202 of Schedule 8 of the Regulations. In support of this finding, the Tribunal referred to and relied upon the certification from the Hales Institute.
Applicable Legislation and Regulations
Condition 8202 of Schedule 8 of the Regulations in its present form was introduced into the Regulations by the Migration Amendment Regulations 2007 (Cth) (SLI 2007 No 190)(Cth)(‘the Amending Regulations’). Schedule 8 Condition 8202 of the Regulations provides:-
“(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) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student -- the holder is enrolled in a full-time course of study or training.
(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 ;
(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 for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
(4) In the case of the 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 study or training.”
The criteria for a Subclass 572 visa are set out in Schedule 2, item 572 of the Regulations. They include cl.572.235 of Schedule 2 of the Regulations which is as set out in paragraph 7 of these reasons, but is repeated here:-
“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 Explanatory Statement, Select Legislative Instrument 2007 No. 190 (‘Explanatory Statement’), for the Amending Regulations relevantly states, in respect of Schedule 3 – Amendments relating to condition 8202, Item [1] – Schedule 8, cl.8202(3) that:-
“This item substitutes subclass 8202(3) in Schedule 8 to the Principal Regulations with a new subclause 8202(3). Condition 8202 is a condition which applies to student visas and currently requires students to attend 80% of their course contact hours and to maintain academic progress that is certified as satisfactory by their education provider.
New subclause 8202(3) will provide that the holder meets the requirements of the subclause if the education provider does not certify that the holder has either:
·not achieved satisfactory course progress in accordance with section 19 of the ESOS Act and Standard 10 of the National Code 2007; or
·not achieved satisfactory course attendance in accordance with section 19 of the ESOS Act and Standard 11 of the National Code 2007.
This proposed amendment to student visa condition 8202 reflects changes to the Education Services for Overseas Students Act 2000 (the ESOS Act) and the National Code 2007. The changes to the ESOS Act and the National Code 2007 were made after a comprehensive evaluation was undertaken by the Department of Education, Science and Training (DEST) in consultation with the Department of Immigration and Citizenship (the Department) and other industry stakeholders. The evaluation found that the issue of a student’s course progress and attendance is more appropriately handled by DEST and education providers and that the Department’s role should be limited to migration matters.
This change will mean that the Minister will no longer be required to assess whether a student is meeting their attendance requirements.
If an education provider certifies that a student has not achieved satisfactory course progress or attendance and reports the student, the DIAC delegate will be required to initiate cancellation action of the visa, unless exceptional circumstances can be demonstrated that the visa should not be cancelled. These exceptional circumstances will be outlined in a section 499 direction.
The effect of the National Code 2007 is that Higher Education providers and Vocational Education and Training education institutions who implement the DEST and DIAC approved course progress policy will no longer be required to monitor attendance.”
This regulatory structure was considered at some length and in detail in Patel v Minister for Immigration and Anor [2011] FMCA 112 by FM Burnett (as His Honour was then). When that matter proceeded on appeal to the Federal Court of Australia, Collier J dismissed the appeal and largely endorsed the reasoning of FM Burnett (as His Honour was then) at first instance. In her decision (Patel v Minister for Immigration and Citizenship [2012] FCA 958), Collier J said, at paragraphs 51 and 52:-
“[51] Properly interpreted, the regime thus created does not require the Minister (or his or her delegate) to form a view on whether the visa holder has complied with attendance or academic requirements. The Minister is required to cancel a student visa if he or she is satisfied that visa holder has not complied with visa condition 8202.
[52] It is clearly for the education provider to form a view as to whether the visa holder has complied with attendance or academic requirements, and notify the Secretary of the Department of Education, Employment and Workplace Relations in relevant circumstances. The act of notification pursuant to Standards 10 and 11 of the National Code and s 19 of the ESOS Act to notify the Secretary constitutes a certification, which itself constitutes the breach of condition 8202 by the holder of the visa. As the Minister properly submits, this is because the visa holder is required by condition 8202(1) to meet the requirements of condition 8202(3), which requires (in summary) that a visa holder not be subject to a certificate of this type.”
And further, at paragraph 74:-
“[74] Placing to one side the point that the ground of appeal to which this submission relates is not readily apparent, and the fact that the validity of the certificate was not actually raised by the appellant in the Tribunal, in my view the question posed by the appellant is misconceived. The Tribunal did not "give itself jurisdiction" "to affirm the cancellation" of Mr Patel's visa "by finding there was a valid certification by Griffith University". The Tribunal decision was limited to reviewing the decision of the Minister's delegate that Mr Patel had breached condition 8202 of his visa, where the decision was made following consideration of a notice and certificate in respect of his attendance. A decision, reviewable by the Tribunal, had been made by the delegate. 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.”
Collier J referred to the earlier judgment of FM Burnett (as His Honour was then) in paragraph 33 of her judgment as follows:-
“[33] The Federal Magistrate found that, irrespective of the merits, the Tribunal need not have been concerned with any rights of appeal in Mr Patel, because ultimately a certificate under s 19 of the ESOS Act was given to the Secretary of the Department of Education, Employment and Workplace Relations, and the Minister was entitled to have regard to it in relation to considering whether to cancel a relevant visa without further investigation (at [34]). His Honour made this finding by reference to a detailed examination of the relevant regulatory structure, including legislative provisions prescribing visa conditions, and the National Code. His Honour observed at [43]-[45]:
[43] In summary, as was submitted by the respondents, the effect of the introduction of the National Code in 2007 was to impose upon education providers obligations under the National Code relating to:
a) setting performance and attendance standards;
b) monitoring performance and attendance standards;
c) provide an appeal structure for determining whether those standards had been breached; and
d) oblige education providers to report breaches of those standards to the Department of Education and to students.
To this end the system was designed to interface with the student visa regime under the Migration Act through Condition 8202.
[44] Critically the new scheme no longer required the Minister for Immigration to form views on attendance or academic progress at all. This it was submitted was now to be done by education providers. It was upon this point that the case really turned. That is, what was a visa holder's remedy in the event that person was unhappy about a decision made in respect of the application of a Standard under the National Code? Was such an applicant's remedy judicial review against the Minister under the Migration Act or was a decision made in respect of a Standard under the National Code only amenable to review processes available as provided by an education provider or other direct legal remedy against it?
[45] It is the issuing of a certificate for the purposes of the relevant Standards of the National Code that gives rise to the breach of Condition 8202. The issue here was whether the Tribunal had jurisdiction to review the education provider's decision to issue such a certificate.”
Collier J then went on to say, as to the earlier judgment of FM Burnett (as His Honour was then) and in paragraph 34 of her judgment, the following:-
“[34] Importantly, his Honour continued at [53]-[57]:
[53]... In particular the fact that once the certificate issues the Minister's hands are tied and critically that the Minister has no role in the decision making process relevant to the issue of the certificate. As the respondents noted in their submission the power to cancel a visa for breach of Condition 8202 arises when the Minister is satisfied that there has been certification by an education provider that has been made for the purposes of Standards 10 or 11 of the National Code and s 19 of the ESOS Act. That is, the constraint on the power to cancel is not whether a certificate exists as a jurisdictional fact but whether the Minister is satisfied that it exists. In other words, whether or not a valid certificate exists in relation to a visa holder, the power to cancel arises where the Minister is satisfied that there exists a certificate made for the purposes of Standards 10 or 11 of the National Code and s 19 of the ESOS Act.
[54] As the respondents submitted, a certificate does not cease to be efficacious if the education provider failed to comply with some aspect of the National Code. One consequence for breach of the National Code is a disciplinary one for the education provider. It does not avail the student a basis for determining that a breach has not occurred. Undoubtedly noncompliance may provide a consideration for the Minister of grounds giving rise to exceptional circumstances beyond the control of the visa holder: see clause 4 of direction 38 under s 499 of the Migration Act; but this does not go to the existence of any breach. If noncompliance is accepted it could provide a basis to remove the obligation to cancel the visa; see Regulation 2.43(2)(b)(ii).
[55] An argument advanced by the applicant was that the respondents' approach denied the applicant any right of review. However I do not think that is so. The 2007 reforms operated to make the education providers the principal decision makers as to whether attendance and progress was satisfactory. These were to be measured against the particular rules and policies of the individual education provider concerned. They were required to meet basic standards imposed by the National Code. It was then left to the education providers to deal with any appeals within their own mechanisms remembering that the National Code provided that education providers were required to have such mechanisms in place. The overall effect of the system was to ensure the Minister was entitled to act upon a certificate issued to a certain effect. Once the Minister was satisfied that the certificate was to the effect stated in Condition 8202, there was a power to cancel. It is not the role of the Minister (or indeed the Tribunal) to go behind any certificate. The scheme was designed so that the Minister could simply rely upon the fact of the certificate and that a student wishing to prevent the issue of a certificate had available internal appeal systems. It follows that any relief sought in relation to a certificate lay against the education provider and not the Minister. (Emphasis added.)
…”
The certification for the purposes of cl.8202(3) of Schedule 8 of the Regulations was not invalid on its face. It said the following:-
“Australian Business Colleges Pty Ltd [01191B] (trading as Hales Institute) on 21 August 2008 certifies Mr Bishwa TAMANG, for course Advanced Diploma of Hospitality Management (THH60202), as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to overseas students (National Code 2007).”
The certification was issued by Mr Tom Liolios, principal executive officer of Hales Institute. The existence of the certificate enlivened the Delegate’s power to act given the certificate appeared valid on its face. The decision to issue the certificate was not reviewable by the Minister of Immigration and Citizenship (‘the Minister’) or the Tribunal (Patel v Minister for Immigration and Anor [2011] FMCA 112 at paragraph 69).
The Tribunal was satisfied that at the time of the certification the Applicant held a Subclass 572 visa subject to condition 8202 of Schedule 8 of the Regulations and that was the last substantive visa held by him. The Tribunal found that the Applicant’s education provider had certified the Applicant as not achieving satisfactory course attendance for the purposes of condition 8202(3)(b) of Schedule 8 of the Regulations. The Tribunal noted that this aspect of condition 8202 of Schedule 8 of the Regulations was one to which the concept of substantial compliance had no logical application. Either the condition was satisfied or it was not. As there was a relevant certificate before the Tribunal from the education provider for the purposes of condition 8202(3) of Schedule 8 of the Regulations, the Tribunal found that there was no compliance with condition 8202(3) of Schedule 8 of the Regulations.
Consideration
The Applicant asserts that the Tribunal’s decision is affected by jurisdictional error in that the Tribunal misconstrued or misapplied cl.572.235 of Schedule 2 of the Regulations in two ways. Firstly, the Applicant claimed the Tribunal was obliged to consider whether or not the Applicant had complied substantially with condition 8202 of Schedule 8 of the Regulations and failed to do so. As put by counsel for the First Respondent, that claim rests on an assumption that the Tribunal was entitled, and moreover obliged to look behind the Hales Institute’s certification. Secondly, the Applicant claims that the Tribunal was obliged to consider overall whether or not the Applicant had complied substantially with all of the conditions applicable to his previous Subclass 572 visa and had failed to do so.
The Applicant submitted that the Explanatory Statement supports the contention that the current version of condition 8202(3)(b) of Schedule 8 of the Regulations is one which is logically capable of substantial compliance. Further it was submitted by counsel for the Applicant that in respect of visa cancellation for failure to comply with condition 8202(3) of Schedule 8 of the Regulations there was a mechanism by which the strictness of the condition and the possibility of consequential injustice was ameliorated. That mechanism was the exclusion from cancellation if there are exceptional circumstances.
In assessing compliance with condition 8202 of Schedule 8 of the Regulations, a decision-maker is not required to form any view about a visa holder’s course progress or attendance (Patel v Minister for Immigration and Citizenship [2012] FCA 958 at paragraph 51). Rather, in respect of a visa holder’s course attendance, the decision-maker must consider whether or not an education provider has certified that the visa holder has not achieved satisfactory course attendance by looking to a certification which appears valid on its face. If the decision-maker is satisfied that the education provider has made such certification then she or he is obliged to refuse to grant the visa.
In undertaking this assessment, the decision-maker is not required to look behind the certification issued by the education provider (Patel v Minister for Immigration and Anor [2011] FMCA 112, paragraphs 43 to 44, 53 to 56, 69, 72 to 73, 78 and 85; Patel v Minister for Immigration and Citizenship [2012] FCA 958 at paragraphs 51 to 53, 56 to 58 and 74). The legislative scheme is designed so that the decision-maker can rely upon the fact of the certification.
The ESOS Act does not provide that a breach of the National Code 2007 by an education provider affects the validity of certification (Patel v Minister for Immigration and Anor [2011] FMCA 112 at paragraphs 43 to 44 and 53) and the National Code 2007 provides that a student can attempt to challenge an intended certification through internal appeal processes. Existing authority, in relation to which I consider I am bound, supports the proposition that the Minister or, on review, the Tribunal, is not required to look behind the certification given by an education provider.
The decision in Patel v Minister for Immigration and Anor [2011] FMCA 112 is consistent with other decisions of this Court about certification for the purposes of condition 8202 of Schedule 8 of the Regulations including Kaur v Minister for Immigration and Anor [2013] FMCA 7, Casse and Ors v Minister for Immigration and Anor [2012] FMCA 1113, Purohit v Minister for Immigration and Anor [2012] FMCA 477, Hassan v Minister for Immigration and Anor [2012] FMCA 155, Kim v Minister for Immigration and Anor [2011] FMCA 780 and Alsunaid v Minister for Immigration and Anor [2011] FMCA 238. I note that the decision of FM Nicholls (as His Honour was then) in Hassan v Minister for Immigration and Anor [2012] FMCA 155 was also the subject of an appeal to the Federal Court wherein Cowdroy J endorsed, at paragraph 39, the reasons for judgment of FM Nicholls (as His Honour was then) at first instance (Hassan v Minister for Immigration and Citizenship [2012] FCA 816).
In summary, once the Tribunal was satisfied that the Applicant’s education provider had certified for the purposes of condition 8202 of Schedule 8 of the Regulations that the Applicant’s course attendance had not been satisfactory, it followed that the Tribunal would also be satisfied that there had been a breach of condition 8202 of Schedule 8 of the Regulations. On the evidence before the Tribunal, the Hale’s Institute certification had been issued by the Applicant’s education provider and for s.19 of the ESOS Act and standard 11 of the National Code 2007. The certification was, on its face, valid and directed to the requirements of condition 8202 of Schedule 8 of the Regulations. It was thus plainly open to the Tribunal to find the Applicant had not complied with condition 8202 of Schedule 8 of the Regulations as it had applied to his previous Subclass 572 visa.
Having made that finding, it was then not open to the Tribunal to find that in spite of the certification, the Applicant was somehow able to comply substantially with condition 8202 of Schedule 8 of the Regulations and in turn meet the criterion of cl.572.235 of Schedule 2 of the Regulations. The Tribunal did not misconstrue or misapply cl.572.235 of Schedule 2 of the Regulations. It correctly referred to and relied upon, the Full Federal Court decision in Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 167 wherein the Full Federal Court considered an earlier version of condition 8202 of Schedule 8 of the Regulations. That version of condition 8202 relevantly required that a visa holder:
“achieves an academic result that is certified by the education provider to be at least satisfactory”
The Full Federal Court considered whether or not, in the absence of certification from the education provider, a visa holder could substantially comply with condition 8202 of Schedule 8 of the Regulations. The majority found that there was no scope for substantial compliance with the condition because as stated by Dawson J in Hunter Resources Ltd v Melville (1988) 164 CLR 234 at paragraph 249 “either there was compliance or there was not” (See paragraphs 5 and 10 to 18).
The principles set out in the joint reasons for judgment of Heerey and Sundberg JJ in Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 167 have been held also to apply to the current version of condition 8202 of Schedule 8 of the Regulations in a number of decisions in this Court, including Singh v Minister for Immigration and Anor [2012] FMCA 821 and Singh v Minister for Immigration and Anor [2011] FMCA 972. There have also been various decisions of this Court in respect of the Tribunal’s non-requirement to undertake an overall or global assessment of the Applicant’s compliance with the conditions which had applied to his previous subclass 572 visa including:-
a)in Musapeta v Minister for Immigration and Anor [2007] FMCA 729, FM Smith (as His Honour was then) stated at paragraphs 27 to 32 that:-
“[27] The applicant's argument is that the Tribunal erred by focusing only upon the applicant's compliance with condition 8202(3)(b), without also making an assessment of his compliance with other conditions in item 8202, and with other conditions under other items of Sch 8 which attached to his previous visa.
[28] As I have indicated above, the Tribunal did note that there was no evidence suggesting non-compliance substantially with other conditions. However, it is clear from its reasoning that it was of the opinion that it did not have to address compliance with those other conditions before arriving at an adverse conclusion in relation to item 573.235.
[29] The legal interpretation presented in the applicant's argument is that that item 573.235 should be construed as requiring a decision-maker to take a global assessment of the visa applicant's overall compliance with all conditions attaching to a previous visa, so as to arrive at an overall conclusion about "substantial compliance". I have not been presented with an elaboration of this argument, but it has some attraction.
[30] However, I accept the submission of counsel for the Minister that authorities binding upon me are contrary to its acceptance. I was referred to the judgment of Ryan J on appeal from this Court in Weerasinghe v Minister for Immigration & Multicultural& Indigenous Affairs [2004] FCA 261 at [12]:
12 The same reasoning compels the result that the present application for review must also fail. Since cl 573.12 of the Regulations requires substantial compliance with all of the conditions cumulatively to which an applicant's last visa was subject, the conclusion just reached makes it strictly unnecessary to consider a second condition with which the applicant was required to comply ...
[31] This was said, after Ryan J held that condition 8202 contained a series of conditions, and that compliance with each of those conditions could arise for consideration under an equivalent to item 573.235 in relation to a subsequent visa application. It was also said after his Honour arrived at the opinion, which was expressly upheld in Jayasekara, that the "academic results" condition in item 8202 did not allow any room for an assessment of anything other than compliance or non-compliance. I accept the Minister's submission it was part of Ryan J's ratio decidendi that it was not necessary for a decision-maker applying a "substantial compliance" criterion, to address compliance with other conditions attaching to a previous visa, once an opinion was arrived at that the applicant had not "complied substantially" with any one of the conditions. In effect, Ryan J construed the "substantial compliance" criterion as requiring substantial compliance with each of the separate conditions attaching to the previous visa.
[32] His Honour's opinion in that respect was not directly addressed in Jayasekara, but an acceptance of it appears implicit in the paragraphs which I have quoted above from the majority judgment. In my opinion, therefore, the argument presented in Ground 4 of the application must fail in the face of authority binding upon me.”;
b)and in Chen v Minister for Immigration and Anor [2011] FMCA 177 FM Burnett (as His Honour was then) stated at paragraphs 19 and 20 that:-
“[19] The applicant contends that this clause should be construed to mean that there is a global assessment of substantive compliance with the applicant’s last substantive visa and any subsequent bridging visa: it does not require a consideration of each condition discretely. The applicant contended the assessment did not require a consideration of the substantive compliance with each condition with the effect being that each condition is considered discretely and that it is only upon the cumulative satisfaction of each condition that the applicant can satisfy Condition 8202. He contended the Tribunal was in error in adopting a construction that afforded as a preface to the words “the conditions” the words “each and every” in the context of the visa conditions.
[20] The language of the clause is not complicated. Its expression is plain and its meaning is readily discernable from a plain reading of the words in their ordinary context. That is, relevantly for this applicant, that the clause requires that the applicant has complied substantially with the conditions that apply or applied to the last substantive visa and to any subsequent bridging visa he held. The clause directs attention to the issue of compliance with each condition of that visa and the subsequent bridging visas. An assessment has to be made as to whether or not there has been substantial compliance with each such condition. On that basis the clause gives rise to a cumulative assessment such that if there is a failure in respect of any one condition the application fails. No global assessment is made.”
I note that the decision of Ryan J in Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261 was not a decision on appeal from this Court, but rather a first instance application before the Federal Court. Nevertheless, I do not think that the decisions of this Court in relation to this matter are plainly wrong and accordingly I should follow them.
Exceptional circumstances
The terms of the Explanatory Statement reflect an intention that by reason of the change to condition 8202 of Schedule 8 of the Regulations the Minister would no longer be required to assess whether or not a student was meeting his or her attendance requirements. The Explanatory Statement only refers to the concept of “exceptional circumstances” in the context of visa cancellation.
The concept of “exceptional circumstances” is only relevant to the availability of a discretion not to cancel a Subclass 572 visa in the event of non-compliance with condition 8202 of Schedule 8 of the Regulations and as set out in s.116 of the Migration Act 1958 (Cth) (‘the Act’), and the Regulations relating to visa cancellation. The existence of “exceptional circumstances” does not negate the existence of any breach of condition 8202 of Schedule 8 of the Regulations; rather it introduces a discretionary element to the power to cancel a visa in the event of such a breach. Section 116 of the Act provides the Minister with power to cancel a visa. Such power is discretionary unless “there exist[s] prescribed circumstances in which a visa must be cancelled.” (s.116(3) of the Act). Those prescribed circumstances are set out in Regulation 2.43(2) of the Regulations. Regulation 2.43(2) is as follows:-
“(2) For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a) in the case of a visa other than a relevant visa -- each of the circumstances comprising the grounds set out in:
(i) sub-subparagraphs (1) (a) (i) (A) and (B); and
(ii) paragraph (1) (aa); and
(iii) paragraph (1) (b); and
(aa) in the case of a relevant visa -- the circumstance comprising the grounds set out in subparagraph (1) (a) (ii); and
(b) in the case of a Student (Temporary) (Class TU) visa:
(i) that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or
(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.”
As was submitted by counsel for the First Respondent in this matter, and not argued against by counsel for the Applicant, the cancellation power was not under consideration by the Tribunal. Instead the Tribunal was exercising a power under s.349 of the Act to affirm or set aside a delegate’s decision to refuse to grant to the Applicant a Subclass 572 visa under s.65 of the Act. In doing so, the Tribunal was obliged to consider whether or not the Applicant met the applicable criteria for the grant of a further Subclass 572 visa. Those criteria included an express requirement that the Applicant had complied substantially with the conditions applicable to his previous Subclass 572 visa. The Applicant argued however that the express requirement for substantial compliance allowed for an exclusion from cancellation if there were exceptional circumstances. If the Tribunal was not satisfied that he had done so, it was obliged to affirm the decision to refuse to grant the Applicant a further Subclass 572 visa. The criteria for the grant of a visa did not refer to any requirement that the decision-maker have regard to whether or not past non-compliance with condition 8202 of Schedule 8 of the Regulations was due to exceptional circumstances beyond the Applicant’s control. In this context, the concept of exceptional circumstances was not relevant. This matter has previously been considered by this Court, which has rejected arguments about the relevance of exceptional circumstances in this context, see Chen v Minister for Immigration and Anor [2011] FMCA 177, paragraphs 41 and 42; Musapeta v Minister for Immigration and Anor [2007] FMCA 729, paragraphs 21 to 24; and Purohit v Minister for Immigration and Anor [2012] FMCA 477 where FM Riley (as Her Honour was then) said at paragraph 25:-
“[25] The applicant sought to argue that there was no breach, because s 116(3) of the Act and reg 2.43(2)(b) only require mandatory cancellation of a student visa if there was breach that was not due to exceptional circumstances beyond the visa holder's control. However, that submission misunderstands the relevant provisions. The question of whether there was a breach of condition 8202 is separate from the question of whether there must be a cancellation of a visa consequent upon that breach.”
Again, it cannot be said that these decisions are plainly wrong and I propose to follow them.
The Applicant has not established any jurisdictional error in the Tribunal’s decision. The application will be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 6 June 2013
3
15
0