Wu v Minister for Immigration
[2016] FCCA 342
•19 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WU v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 342 |
| Catchwords: MIGRATION – Where education provider (first education provider) issued a certificate under s.19 of the Education Services for Overseas Students Act 2000 (Cth) – where delegate decided not to cancel the Applicant’s student visa under s.116 of the Migration Act 1958 (Cth) – where Applicant enrolled in and commenced study at another education provider (second education provider) – where another delegate refused to grant the Applicant a further visa, because the Applicant did not meet the applicable criteria: cl.573.235 of sch.2 of the Migration Regulations 1994 (Cth) (“the Regulations”) – whether the second education provider was “the education provider” for the purpose of condition 8202(3)(a) of Sch.8 of the Regulations – whether Applicant had substantially complied with cl.573.235 of sch.2 of the Regulations – whether condition 8202 of Sch.8 of the Regulations is invalid. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth), ss. 19, 20 Migration Act 1958 (Cth), ss. 116, 29, 31, 41, 137J, 137K, 137L, 137P Migration Regulations 1994 (Cth), cl.573.235 of sch.2, condition 8202 of sch.8, r. 2.01, sch.1, item 1222, r.2.02, sch.2, rr. 1.03, 2.43, cl. 573.321 of sch.2, cl. 573.234 of sch.2, PIC 4002 of sch.4, cl.572.235 of sch.2 |
| Ahmed v Minister for Immigration and Border Protection [2015] FCA 1059 Migration Amendment (Redundant and Other Provisions) Regulation 2014 |
| Applicant: | YINGNAN WU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2201 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 9 December 2015 |
| Date of Last Submission: | 11 December 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 19 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Kabo Lawyers |
| Counsel for the Respondents: | Mr Rogers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Second Respondent’s name be amended to the ‘Administrative Appeals Tribunal’.
The Application for judicial review filed on 12 December 2013 and the Amended Application for judicial review filed on 11 December 2015 be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2201 of 2013
| YINGNAN WU |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant applies for judicial review of the decision of the (then) Migration Review Tribunal (“the Tribunal”) dated 27 November 2013, affirming a decision of a delegate of the First Respondent made on 14 August 2013 not to grant the Applicant a Student (Temporary) (Class TU) visa (“the visa”).
This case concerns the consequences which follow, in circumstances where:
a)whilst the Applicant was the holder of a student visa, a notice was issued by one education provider (“the first education provider”), certifying the Applicant as having unsatisfactory course progress;
b)the student visa was, however, not cancelled by a delegate of the First Respondent, because of compelling circumstances;
c)the Applicant commenced study with another education provider (“the second education provider”); and
d)the Applicant applied for a new student visa, whilst continuing his study with the second education provider.
It is appropriate to set out the relevant statutory scheme, prior to setting out the background facts to this application for judicial review.
Legislative Scheme
The grant of visas and the conditions attaching to different classes of visas is set out in the Migration Act 1958 (Cth) (“the Act”) and the Migration Regulations 1994 (Cth) (“the Regulations”).
Section 29 of the Act provides that the Minister for Immigration (“the Minister”) may grant a non-citizen a visa.
Section 31 of the Act provides that there are “prescribed classes” of visas and that the Regulations may prescribe criteria for specified classes of visas.
Section 41 of the Act further provides that the Regulations may specify that certain classes of visas may be subject to specified conditions.
Regulation 2.01 of the Regulations provides that for the purposes of s.31 of the Act, the prescribed classes of visas are those set out in sch.1 to the Regulations. Schedule 1, item 1222 to the Regulations specifies a Student (Temporary) (Class TU) visa as a class of visa. By reason of r.2.02 of the Regulations, subclasses of visas are those specified in sch.2 to the Regulations.
At the time the Applicant applied for his student visa on 13 March 2013, cl.573.235 of sch.2 to the Regulations provided, as a criteria for the grant of a visa:
If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.
“Condition” is defined in r.1.03 of the Regulations to mean a “condition set out in a clause of Schedule 8, and a reference to a condition by number is a reference to the condition set out in the clause so numbered in that Schedule.”
Condition 8202 of sch.8 to the Regulations, which applied to the last substantive visa held by the Applicant relevantly provided:
(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.
12.Section 19 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) provides, inter alia, for the Secretary to be notified of any breach of any prescribed condition of a student visa. Section 20 of the ESOS Act provides for the giving of notice to a student of any breach of a prescribed condition.
13.Section 137J of the Act provides for the automatic cancellation of a student visa, where a notice has been sent under s.20 of the ESOS Act at the end of a period of 28 days after the date of the notice.
Section 116 of the Act 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
...
(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.
15.Regulation 2.43(2)(b)(ii) of the Regulations sets out the prescribed circumstances referred to in s.116(3) of the Act. It relevantly provided:
(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.
The effect of s.116 of the Act (as it then provided) is to give the Minister a discretion whether or not to cancel a visa, where there has been a breach of a condition 8202 of sch.8 to the Regulations, and where an application is made within the 28-day period. The Minister must be satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
Section 137K of the Act provides for an application to be made for “revocation of cancellation”.
Section 137L of the Act is set out in similar form to r.2.43(2)(b)(ii) of the Regulations and relevantly provides:
“Dealing with the application
(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or
(b) that the breach was due to exceptional circumstances beyond the non-citizen's control; or
(c) of any other matter prescribed in the regulations.
…
Background Facts
The Applicant came to Australia, completing his VCE at the Knox School in Victoria in 2010 (CB 38). On 19 May 2011, the Applicant was granted a Subclass 573 student visa to study an Associate Degree in Engineering Technology at RMIT University (CB 109). The visa was due to expire on 14 March 2013 (CB 1). The Applicant discontinued study in this course on 31 December 2011 and instead enrolled in a Bachelor of Management at the University of Ballarat commencing 19 March 2012 and due to conclude on 30 December 2014 (CB 109).
On 7 January 2013, the University of Ballarat certified the Applicant as having unsatisfactory course progress. That certification was made pursuant to s.19 of the ESOS Act. The University of Ballarat issued a notice to the Applicant under s.20 of the ESOS Act (CB 84).
Under s.137J of the Act, the Applicant’s visa would have been cancelled at the end of the 28th day after the date of the notice, if the Applicant did not attend an office of the Department of Immigration (“the Department”) to make submissions about the matter. On 1 February 2013, the Applicant made submissions why his visa should not be cancelled. The circumstance he relied on was his mental ill-health arising from a car accident in March 2012. Under s.116 of the Act, the Applicant was informed that the Department had decided not to proceed with cancelling his visa (CB 84).
On 13 March 2013, the Applicant applied for a new Subclass 573 student visa (CB 1-23).
From 30 January 2013, the Applicant was enrolled in a Certificate IV in Business at the Holmes Institute. His study commenced on 18 March 2013 and ended on 23 August 2013 (CB 45). He was then enrolled in a Diploma of Management at the Holmes Institute from 26 August 2013 to 14 March 2014 (CB 46, 164). From 17 March 2014, the Applicant was enrolled in a Bachelor of Business, with a completion date of 31 December 2015 (CB 47, 165). The Applicant says that these three courses are part of a package, with qualification from the first two courses counting towards the third. There was material before the Tribunal from the Holmes Institute, which said that he had met all assessment requirements and was seen by his teachers as committed, a capable student and that his work was considered to be above average (CB 192). There is no reason not to infer that the Applicant had by the date of the hearing of this matter successfully completed or is about to successfully complete his Bachelor of Business. There is nothing to suggest that the Applicant did not continue to study, albeit on a bridging visa.
On 14 August 2013, a delegate of the Minister decided not to grant the Applicant a visa (CB 103 to 112). The delegate concluded that the Applicant had not satisfied the criterion for the grant of the visa, set out in cl.573.235 of sch.2 to the Regulations.
Specifically, the delegate concluded that the Applicant had not substantially complied with condition 8202 of sch.8 to the Regulations, because the Applicant had been certified by the University of Ballarat as having unsatisfactory course progress.
Cl.573.235 and Condition 8202 - the authorities
The Applicant accepts that in pursuing his grounds of judicial review, he faces an insurmountable task, given the consideration by superior Courts of the interaction of cl.573.235 of sch.2 to the Regulations and condition 8202 of sch.8 to the Regulations.
As pointed out by Flick J in Ahmed v Minister for Immigration and Border Protection [2015] FCA 1059 (“Ahmed”) at [12], condition 8202 of sch.8 to the Regulations has been held to be one which does not permit of “substantial compliance”: Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCAFC 167; (2006) 156 FCR 199 (“Jayasekara”). In Jayasekara condition 8202(3) of sch.8 to the Regulations specified cumulative conditions to be met and 8202(3)(d) of sch.8 to the Regulations relevantly provided:
8202(3) The condition is that:
…
(d) in any case–the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
…
Thus a requirement for the visa was the fact of a (positive) certificate from the education provider, as having an academic result “at least satisfactory”.
In Jayasekara, the Applicant conceded that the University he had attended, whilst holding his last visa, had not issued a certificate under condition 8202(3)(d) of sch.8 to the Regulations. The Applicant claimed his results had been adversely affected by a number of factors outside of his control. The majority in Jayasekara, Heerey and Sundberg JJ concluded:
[12] 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.
[13] An analogy is provided by Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234. Mining regulations required tenements, the subject of applications, to be marked out by pegs at intervals not exceeding 300 m. The High Court held that a mining warden had correctly refused an application where the intervals in three places exceeded 300 m by between 1 and 3 m. Dawson J said at 249:
“... this is a case, in my view, in which substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not ... I am unable to understand how it can be said that to exceed the maximum limit was substantially to comply with it.”
In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [92] McHugh, Gummow, Kirby and Hayne JJ, notwithstanding their abandonment of the traditional mandatory/directory distinction, cited the above statement with approval.
[14] Turning to condition 8202(3), we note first that counsel accepted that the four paragraphs of the condition are cumulative; there would not be substantial compliance if an applicant satisfied three paragraphs.
[15] The substantial compliance requirement might, as counsel’s argument suggests, be apt in the case of para (c) where the condition is expressed in terms of the decision-maker being satisfied of a particular percentage of contact hours. However, in the present case it is not suggested there was any certificate at all. There was thus no compliance, let alone substantial compliance. Still less could reasons or explanations for non-compliance amount to compliance, substantial or otherwise.
[16] There is an obvious policy behind the way the condition is framed. Questions of academic progress should be left to the judgment of the education provider rather than a Departmental decision-maker or the Tribunal, who are less well fitted to make such judgments: Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 at [4].
The majority stated at [18], “While one is sympathetic with the human problems the applicant faced, the solution is an appropriate amendment to the regulations to make allowance for hardship.”
In his dissenting judgment, Finkelstein J said:
22. The general purpose of condition 8202(3) is not difficult to discern. A foreign student undertaking a course of study in Australia who wishes to renew his student visa must show that he is enrolled in an appropriate course, attends classes and does enough work to achieve good grades. Put simply, condition 8202 aims to ensure that a student visa is granted to a person who is taking his studies seriously.
23. When one examines sub-condition 8202(3)(d) it is apparent, at least it is apparent to me, that the principal part of the condition is that the visa applicant has achieved a satisfactory academic result in the course he is undertaking. The provision of the certificate is the means by which this is established. It is therefore a subsidiary part of the condition. This suggests that the failure to provide the certificate should not be fatal to the visa applicant provided he is able to show by some other means that he has achieved a satisfactory academic result as assessed by the education provider.
24. One is driven to this conclusion if one pauses to consider the consequences of holding that the failure to produce a certificate obliges the Minister to refuse to grant the visa. Let it be assumed that a visa applicant is able to satisfy sub-conditions (a), (b) and (c) of condition 8202(3). Let it also be assumed that the applicant is one of the top students in his course, achieving results that far exceed satisfactory. Finally, let it be assumed that the visa applicant is unable to obtain a certificate that certifies his excellent academic record. There may be several reasons for the inability to produce a certificate, none of them altogether fanciful. For example, the institution in which the visa applicant was enrolled may no longer exist. Another possibility is that the school records have been destroyed. Or it may simply be that for no good reason the institution refuses to supply the certificate when needed.
25. In my opinion it is simply not possible to attribute to the author of condition 8202 the intention that the failure to provide a certificate is fatal to the visa applicant’s claim. Subject to one qualification, all that is necessary to comply with the condition is for the visa applicant to show that his academic results are satisfactory. In the absence of a certificate this could be done, for example, by the production of an academic transcript. If the transcript is not available a written statement from the teacher might do. No doubt there are other means of establishing that the visa applicant has reached the appropriate standard.
26. I said there was a qualification to the need to show the achievement of satisfactory academic results. The qualification is this. If the visa applicant’s academic results are not satisfactory, he may still satisfy sub-condition (d) if he can establish that he has substantially complied with the condition. That is cl 573.212 may be brought into play.
27. For the record I note that, as has the majority, I have based my reasoning on Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. I have also had regard to Scurr v Brisbane City Council (No 5) [1973] HCA 39; (1973) 133 CLR 242 where it was held that even total non-compliance with a directory provision (the old description) did not necessarily lead to invalidity. Some may think it strange that judges come to opposite conclusions after applying the same precedents. In this case the explanation lies in the different choice of the question that required answer.”
Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 (“Dai”) was concerned with the same legislative regime as Jayasekara. In this case the Appellant’s educational provider had notified her that her enrolment had been cancelled, because of her unsatisfactory academic progress. The Court identified an issue on appeal at [8] thus:
“In the course of argument on the hearing of the appeal, an issue was raised by the Court concerning the construction of condition 8202 that would activate the power of the Minister to cancel a visa under s 116(3) of the Act. Condition 8202 requires that the visa holder achieve an academic result that is certified by the education provider to be at least satisfactory. Thus, non-compliance with the condition, and the trigger for cancellation, arises upon non-certification of satisfactory performance rather than upon certification of unsatisfactory performance. The issue that emerges is how could a visa holder comply or fail to comply with the condition if required to provide certification, over which the visa holder has no control.”
The issue identified by the Court was concerned with the validity of the delegate’s decision made under s.116 of the Act that the visa holder had not complied with condition. The focus of the majority (North and Gyles JJ) was the absence of any role or act on behalf of the Appellant in satisfying the visa condition. At [19] to [20] North J said:
19. There was no act of the visa holder which could satisfy the requirement of condition 8202. The achievement of the academic result was irrelevant unless certified. No matter what the student did or did not do, the absence of a certificate would be fatal.
20. Thus, there was no way in which the visa holder could not comply with the condition 8202. It follows that it was not possible for the Minister to be satisfied that the visa holder had not complied with condition 8202. It further follows that the power of the Minister to cancel the appellant’s visa under s 116(3) was not engaged.
Gyles J identified the vice with the then provisions of condition 8202 of sch.8 to the Regulations at [30]:
“…The preponderance of authority favours the view that certification is the gist of this condition – Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 at [55] and [56]; Ahmed [2005] FCAFC 58; 143 FCR 314 at [50]; Jayasekara [2006] FCAFC 167; 156 FCR 199 per Heerey and Sundberg JJ at [15] and [16]; and Cheng [2007] FCAFC 71 at [35]. The opinion of Finkelstein J in dissent in Jayasekara [2006] FCAFC 167; 156 FCR 199 at [25]–[27], relied upon by counsel for the Minister, does not represent the law. Condition 8202 is not framed so as to expressly impose an obligation upon the visa holder to hold or procure certification – certification is rather a free standing requirement. Compliance depends upon the existence of a positive certificate. Non-compliance is therefore the absence of a positive certificate rather than the existence of a negative certificate.”
His Honour then reasoned at [34] to [37]:
34. …The validity of condition 8202 is affected by the conclusion I have reached. The disconformity between s 116(1)(b) (and reg 2.43(2)(b)), on the one hand, and condition 8202 subclause (3)(b), on the other, is also reflected within condition 8202 itself. Subclause (1) obliges the visa holder to meet the requirements of subclause (3)(b) in those cases to which it is applicable. In my opinion, the form of condition 8202 that was in force at the time relevant to this case was ultra vires the legislation, at least in circumstances where subclause (3)(b) came into play. On pain of cancellation of the visa, it compelled compliance by the visa holder with requirements that were not practicable or certain.
35. The role of unreasonableness, proportionality and uncertainty in relation to subordinate instruments is controversial – see the analysis in Pearce D and Argument S, Delegated Legislation in Australia, (3rd ed, LexisNexis Butterworths, 2005) at Ch 21 and Ch 22 and Aronson M and Dyer B, Judicial Review of Administrative Action, (2nd ed, LBC Information Services, 2000) at pp 275–292. There has been valuable recent discussion as to reasonableness and proportionality by Weinberg J sitting in the Full Court in Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299 at [140]–[161] and [170]–[172]. See also Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 per Spigelman CJ at [127]–[139]; One.Tel Ltd v Australian Communications Authority [2000] FCA 1085; (2000) 176 ALR 529 per Hely J at [27]–[35]; and Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377; (2000) 171 ALR 53 per O’Connor and Mansfield JJ at [36]–[51].
36. The most illuminating discussion of uncertainty in the context of a licence condition, breach of which would render the licence subject to cancellation, is that by Kitto J in Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 at 70 as follows:
“In this context it seems to me a necessary conclusion that what the Act means by a ‘condition’ is a specification of acts to be done or abstained from by the licensee company--a specification telling the company what it is to do or refrain from doing, and thus on the one hand enabling it in regulating its conduct to know whether it is imperilling the licence or not, and on the other hand making clear to the Minister for the time being what test he is to apply in order that any judgment he may form as to compliance or non-compliance may not be vitiated by error of law. A specification cannot, I think, fulfil this dual function if it is so vaguely expressed that either its meaning or its application is a matter of real uncertainty; and for that reason it seems to me that on the proper construction of the Act the Minister's power to impose conditions is to be understood as limited to the imposition of conditions that are reasonably certain--that is to say (as has been said in a long line of cases with respect to conditions of forfeiture created by the dealings of private persons with other forms of property) conditions such that from the moment of their creation the Court can say with reasonable certainty in what events forfeiture will be incurred: cf In re Sandbrook; Noel v Sandbrook [1912] 2 Ch 471, at p 477. Such certainty includes both certainty of expression and certainty in operation.”
37. In my opinion, condition 8202 as it stood in 2004 was both uncertain and unreasonable in the sense explained in the authorities and so was not authorised by the legislation.”
Hassan v Minister for Immigration and Citizenship [2012] FCA 816 (“Hassan”) was decided following the introduction of the current condition 8202 of sch.8 to the Regulations and the introduction of ss.19 and 20 of the ESOS Act and ss. 137J, 137K and 137L of the Act.
In Hassan the circumstances were as follows:
a)in January 2010 the appellant received Confirmations of Enrolment in a course from the Hibernia Institute Brisbane Pty Ltd (‘Hibernia’) for a Diploma of Management, commencing on 1 February 2010 and concluding on 2 July 2010 and an Advanced Diploma of Management, scheduled to commence on 19 July 2010 and conclude on 17 December 2010;
b)the appellant applied for and was granted a 572 visa on 24 March 2010;
c)on 4 July 2010, Skills Tech Australia, an institute of TAFE Queensland, made an International Student Offer to the appellant to study a Certificate III in Automotive Mechanical Technology (Light Vehicles) and the appellant accepted that offer;
d)on 21 July 2010, Hibernia issued a notice to the appellant, pursuant to s.20 of the ESOS Act, stating he was not making satisfactory course progress in the Diploma of Management. On that same date, Hibernia also notified the Department, pursuant to s.19 of the ESOS Act;
e)28 days after these notices, the appellant’s visa was cancelled, pursuant to s.137J of the Act;
f)the appellant then sought a revocation under s.137K of the Act, on the grounds that the breach of his visa condition was due to exceptional circumstances beyond his control. The appellant stated that those exceptional circumstances were the ill-health of his mother, his depression and absence of emotional support; all of which prevented him from concentrating on his studies. Furthermore, the appellant stated that he had enrolled in a course provided by another education provider, Skills Tech Australia and would have continued studying with them, but for the cancellation of his visa;
g)the Department refused to revoke the cancellation, on the basis that it considered that the grounds relied upon by the appellant did not amount to exceptional circumstances; and
h)following an application for review, a Tribunal affirmed the delegate’s decision.
In Hassan, Cowdroy J stated with respect to the factual matrix of the case at [20]:
Therefore for the purposes of the ESOS Act, at the time the appellant received the 572 visa Hibernia was the provider and the appellant was an accepted student at Hibernia.
The Applicant’s submission on appeal was that he had not breached his visa condition, that he had changed education providers and that he would have continued studying had his visa not been cancelled.
Having found that Hibernia was the education provider at the time the notices were issued under ss. 19 and 20 of the ESOS Act, Cowdroy J found that the appellant sought to impermissibly go behind the certification by the educational provider. His Honour relied on the decision of the Full Court in Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 for the proposition that the fact of certification by the education institution that a student was not making satisfactory progress, itself constitutes a breach of visa conditions. His Honour then referred, with approval, to two decisions of Jarrett FM (as his Honour then was), in which he held that the s.20 notice issued by an educational institution was conclusive, and a Court could not review the circumstances which led to the issuing of the notice: Kim v Minister for Immigration and Anor (2011) 254 FLR 19 and Kumar v Minister for Immigration and Anor [2011] FMCA 741.
His Honour held that the Court is not able to consider the circumstances under which Hibernia issued the s.20 notice at [43]. Further, his Honour relevantly said at [44]:
“While the appellant relies upon his enrolment at TAFE Queensland to establish that he was no longer an ‘accepted student’ at Hibernia, such fact is irrelevant since at the time the s 19 certification was issued by Hibernia, the appellant remained an ‘accepted student’ at Hibernia.”
In Vannemreddy v Minister for Immigration and Citizenship (2013) 211 FCR 223 (“Vannemreddy”), the Appellant’s education provider issued a notice that the Appellant’s attendance at the college was unsatisfactory. A delegate, having decided that the Appellant had not complied with condition 8202 of sch.8 to the Regulations and there were no extraordinary circumstances beyond his control, cancelled the visa.
On appeal, the Appellant submitted that the College had failed to comply with relevant standards of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007, with the consequence that the College’s certificate as to his unsatisfactory progress was invalid.
Justice Murphy dismissed this argument, holding at [57] to [61]:
57. In assessing compliance with condition 8202 the scheme of the legislation is that the decision-maker can rely upon the fact of certification by the education provider. The decision-maker is not required to look behind the certification so as to form its own view about the appellant’s attendance at the course. For that reason, the fact that the College certified the appellant’s unsatisfactory course attendance a little too early is not determinative. As the Full Court explained in Maan at [44] to [45]:
[44] It follows from an ordinary reading of Sch 8, cl 8202(3) of the Migration Regulations that the Tribunal was correct in finding that the VIT [the education provider] certification constituted non-compliance by the appellant with his visa conditions...
[45] The fact that it is the certification by the educational institution as to breach of its attendance policies which constitutes the breach by the student of the visa clearly imposes substantial responsibilities on the educational institutions...
...
58. Similarly, in Patel v Minister for Immigration and Citizenship [2012] FCA 958 at [51] to [52] Collier J observed:
[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 [the] 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.
(Emphasis in original.)
…
61. Counsel for the appellant seeks to distinguish Maan, Patel and Hassan, contending that no question of invalidity of certification arose in these cases. I do not agree. In Patel the certificate under s 19 of the ESOS Act was provided by a person not authorised to do so and its validity was expressly challenged. Collier J 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.
In Hassan the appellant argued that the s 19 certification issued by the educational institution was invalid on the basis that he was not an “accepted student” at that institution for the purposes of the ESOS Act. At [43] Cowdroy J accepted that even if such a breach of the National Code was established it would not invalidate the notice.
The question of validity arose in Liu v Minister for Immigration and Citizenship [2013] FCCA 64 (“Liu”). In this matter the Applicant’s student visa was cancelled under s.116 of the Act after an educational provider issued a certificate pursuant to s.19 of the ESOS Act, that she had not achieved satisfactory course attendance. At [15] Judge Raphael commenced dealing with the Applicant’s submission that condition 8202(3)(ii)(b) of sch.8 to the Regulations was invalid, because it was inconsistent with the statutory scheme set out in s.137L of the Act:
The scheme of Clause 8202 is that the holder of the visa must meet the requirements of sub-clause 3 and will only meet that requirement if his education provider has NOT certified him as not achieving satisfactory course attendance (8202(3)(ii)(b)). The applicant accepts the authorities which have found that a decision maker is not permitted to go behind the certification but says that these authorities render the sub-clause invalid because it is inconsistent with the statutory scheme set out in s.137L and with Regulation 2.43(2)(b)(ii)(A) prescribed for mandatory cancellation of a student visa under s.116. The applicant directs her attack at s.137L but the respondent concedes that because of the similarity of wording of s.137L(i)(a) and Regulation 2.43(2)(b)(ii)(A) as informed by s.119(1)(b)(i) he could not argue that there was validity in one method of dealing with non-compliance if there was invalidity in the other.
In this matter the Applicant had argued that the education provider was not in the position to issue her a notice, because, at the time, she was not an accepted student of that education provider.
The Applicant’s argument with respect to invalidity was that, if the decision-maker is not permitted to go behind the certification, s.137L(a) of the Act has no work to do in the case of a person who has their visa cancelled by force of s.137K of the Act. This is because the student is unable to show that there has been no breach, as the certification is the breach.
Judge Raphael set out extracts from the decision of the High Court in Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 (“M47/2012”). This decision is relied on by the Applicant in these proceedings. Those parts of the judgment in M47/2012 extracted in Liu are as follows, at [18] to [21]:
18. The applicant relies heavily upon what fell from the High Court in Plaintiff M47/2012 v Director General of Security (2012) 292 ALR 243. At [71] French CJ said:
“[71] Despite the support for the validity of public interest criterion 4002 which might be derived from the decisions of the Federal Court in Sultan and Kaddari, and analogical argument which might be derived from VWOK, the relationship between public interest criterion 4002 and the provisions of ss 500-503 of the Migration Act spells invalidating inconsistency. That is primarily because the condition sufficient to support the assessment referred to in public interest criterion 4002 subsumes the disentitling national security criteria in Art 32 and Art 33(2). It is wider in scope than those criteria and sets no threshold level of threat necessary to enliven its application. The public interest criterion requires the Minister to act upon an assessment which leaves no scope for the Minister to apply the power conferred by the Act to refuse the grant of a visa relying upon those Articles. It has the result that the effective decision-making power with respect to the disentitling condition which reposes in the Minister under the Act is shifted by cl 866.225 of the Regulations into the hands of ASIO. Further, and inconsistently with the scheme for merits review provided in s 500, no merits review is available in respect of an adverse security assessment under the ASIO Act made for the purposes of public interest criterion 4002. Public interest criterion 4002 therefore negates important elements of the statutory scheme relating to decisions concerning protection visas and the application of criteria derived from Arts 32 and 33(2). It is inconsistent with that scheme. In my opinion cl 866.225 of the Regulations is invalid to the extent that it prescribes public interest criterion 4002.”
19. Hayne J expressed his views at [221]:
“[221] The defendants' submissions that there can be no decision to refuse to grant a protection visa relying on either Art 32 or Art 33(2) should be rejected. Section 500(1)(c) can and should be construed as having useful work to do. It follows that the prescription by cl 866.225(a) of Sched 2 to the Regulations of PIC 4002 as a criterion for the grant of a protection visa is not valid. Its making is inconsistent with the express provisions of the Act and s 31(3) does not authorise the specification of a criterion inconsistent with the Act. No party suggested that PIC 4002 could be read down.”
20. Crennan J considered the inconsistency at [396 – 399]:
“[396] A decision to refuse to grant a protection visa relying on PIC 4002 effectively reposes the power of determining the application for a protection visa in the hands of an officer of ASIO. The scheme under the Migration Act for refusing such an application relying on Arts 32 and 33(2) reposes the power of determining the application in the Minister personally or in the Minister's delegate.
[397] With some exceptions which are not presently relevant, an officer of ASIO is not required to state the grounds for issuing a security assessment for the purposes of the Migration Act. A decision by the Minister personally under s 502 of the Migration Act is subject to parliamentary scrutiny. A decision under s 501 of the Migration Act requires the Minister (or, in the case of a decision under s 501(1), a delegate of the Minister) to reach specific states of satisfaction as to whether the Applicant for a visa "passes the character test", or whether the refusal of a visa is "in the national interest".
[398] A decision to refuse an application for a protection visa relying on PIC 4002 is subject to review under Pt 7 of the Migration Act. However, as explained above, neither the substance nor the making of the security assessment is relevantly subject to merits review. By comparison, a decision by the Minister, or the Minister's delegate, relying on Arts 32 and 33(2) (other than a decision to which a certificate under s 502 applies) is reviewable on the merits by the AAT.
[399] These differences support the plaintiff's essential contention that the prescription of PIC 4002 as a criterion for the grant of a protection visa departs from and undermines the specific provisions of the Migration Act which apply to a decision to refuse, or to cancel, a protection visa relying on Arts 32 and 33(2) of the Convention. The differences in scope between PIC 4002, s 4 of the ASIO Act and Arts 32 and 33(2) of the Convention, which were noted in submissions, do not ameliorate that inconsistency. This leads to the conclusion, which answers Question 2A, that cl 866.225 of Sched 2 to the Migration Regulations is, to the extent that it prescribes PIC 4002 as a criterion for the grant of a protection visa, beyond the power conferred by s 31(3) of the Migration Act.”
21. Finally, Kiefel J opined at [456 - 459]
“[456] The Migration Act contemplates that the Minister, or the Minister's delegate, may consider whether a person poses a risk to the security of Australia in determining whether to grant or to refuse a protection visa. If the Minister considers that the risk to security is unacceptable, a visa may be refused notwithstanding that a person comes within the Refugees Convention's definition of a refugee. The Minister could be informed by an assessment by ASIO. It may be noted that such an assessment is required under the Migration Act where a person is to be deported on security grounds.
[457] The Migration Act, by s 500(1)(c), provides for a review to be conducted by the AAT of a decision of this kind. This strongly implies that the grounds provided by the three Articles of the Refugees Convention, which may be relied upon by the Minister in refusing to grant a protection visa, are not criteria respecting the grant of a visa under s 65(1)(a)(ii); rather, what is contemplated is that the procedure concerning refusal on these grounds is subject to review by a Tribunal chosen for that purpose.
[458] PIC 4002, if applied, would deny the Minister that consideration and it would deny the review process specified in s 500(1). It has the effect of bringing the consideration by the Minister, or the Minister's delegate, to a premature end and rendering the decision to that effect non-reviewable. The process created by PIC 4002 requires a refusal of a protection visa based entirely upon an opinion formed by officers of ASIO. But it is nowhere contemplated by the Migration Act that officers of ASIO are to have a determinative role regarding applications for visas.
[459] The ASIO Act provides for a review of an adverse security assessment by the AAT, but that review would be of an assessment of security as defined by s 4 of the ASIO Act, which, as has been noted, contemplates wider notions of security. PIC 4002 could, on one view, be read down to limit the assessment of Australia's security conformably with Arts 1F, 32 and 33(2), but this would not overcome the clear intention of the Migration Act that the Minister, or the Minister's delegate, consider for him- or herself whether a protection visa should be refused on grounds of national security. PIC 4002's statement that the non-existence of an adverse security assessment is a criterion impermissibly cuts across the process intended by the Migration Act.”
Judge Raphael noted that under the Act, resort to third parties to make non-factually reviewable determinations is common with authorities tending to favour the validity of such clauses, when validity is called into question [24]. His Honour cited two decisions, in which scope for further investigation by the Minister existed, in circumstances where the opinion of the medical officer was to be taken as correct: Applicant Y v Minister for Immigration and Citizenship (2008) 100 ALD 544 and Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115. His Honour contrasted these earlier decisions with later authorities dealing with the impugned validity of provisions whereby the Minister’s decision is contingent upon the opinion of third parties. Reference was made to the decision of Collier J in Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384. Raphael J concluded at [33] to [34]:
33. This decision is binding upon me and appears to dispose of the argument raised in ground 4 of the application. I am satisfied that their Honours were correct in their application of the statutory scheme and that the Minister is capable of considering the certificate in the same manner as a language competency result as outlined by Perram J. The example was used that if a student is issued with a certificate, has his visa cancelled automatically and applies for revocation on the basis that the certificate applies not to him but to another person of the same name then the first part of the requirement on the Minister will not allow this information to come out because the Minister will only look at the certificate and say that it is proof of her non-compliance. The applicant will have to fall back on the second part at the breach due to exceptional circumstances beyond her control. Whilst this seems not a particular satisfactory way to go, it does not mean that s.137L(1)(a) has no work to do at all and it preserves the formula whereby the responsibility for determining a student’s progress or attendance is left with the educational institutional as was intended by the reforms.
34. It follows that the analogy of this case with M47/2012 cannot be sustained. In that case the major vice of the Regulation PIC4002 was that it was inconsistent with the scheme under the Act and had the effect of taking away from the Minister the power to make a decision in accordance with the Act. The Regulation was “wagging” the Act. The Applicant has not referred me to any part of the Migration Act whose operation is stymied by the effect of a certificate under s.20 of the ESOS Act. Nor is the Applicant denied effective review because of the existence of criterion (b) in s.137L(1)(b) and criterion B in Regulation 2.43(2)(b)(ii)(B).
In Ahmed, the Applicant received notice that his visa had been cancelled, because his education provider had certified that he had not achieved satisfactory course attendance. That cancellation was subsequently revoked in February 2013, on the basis that his non-attendance was due to exceptional circumstances beyond his control: Ahmed at [2].
It was common ground at the hearing in Ahmed that, but for the revocation of the cancellation of the visa, the Applicant could not fall within cl.573.235 of sch.2 to the Regulations: Ahmed at [11].
Flick J noted [at 12] that 8202(3)(d) of sch.8 to the Regulations was expressed in different terms to those now being considered.
Flick J set out the facts of the case before him and proceeded to deal with the Applicant’s argument on appeal at [14] to [17]:
14. On the facts of the present case, the education provider had certified that Mr Ahmed had not achieved a satisfactory course attendance. The cancellation of his visa was “automatic”; the cancellation was effected “by force of” s 137J. And cl 573.235 required compliance with each of the conditions to which a visa is subject: cf. Montero v Minister for Immigration and Border Protection [2014] FCAFC 170 at [27] to [32], (2014) 229 FCR 144 at 149 to 150 per Flick J (Allsop CJ and Logan J agreeing).
15. But the fact that the cancellation of his visa had been revoked pursuant to s 137L had the consequence, Counsel for Mr Ahmed contended, that the Appellant satisfied the requirements of cl 573.235 and that the decision of Heerey and Sundberg JJ in Jayasekara should be distinguished. The manner in which Mr Ahmed was said to have complied with clause 573.235 was essentially advanced in a number of ways, namely:
o the revocation of the cancellation decision had the consequence that the continuing effect of any prior failure to satisfy course attendance requirements was “spent”;
o the consequence of the decision to revoke the cancellation decision was such that Mr Ahmed should be deemed to have “substantially complied” with the conditions of his student visa; and/or
o clause 573.235 should be construed as subject to a necessary implication that permitted students who had successfully invoked s 137L to now satisfy the requirements of that clause.
These may not be the only ways in which the proposition was sought to be advanced.
16. However the proposition is expressed, it is rejected. Section 137P, it is respectfully concluded, provides for the “effect of revocation”. That “effect” is that “the visa is taken never to have been cancelled under section 137J”. But that is the only “effect” that flows from the revocation of the automatic cancellation of a visa pursuant to s 137J. Section 137P does not provide that a further “effect” of the revocation of a cancellation decision is that a student who has failed satisfactorily to attend a course is (for example) “taken” to have complied with that condition.
17. There is, with respect, no reason to construe cl 573.235 in any manner other than according to the natural and ordinary meaning that the words convey. Section 139P does not change the manner in which that clause is to be construed. And there is no reason to construe that clause as subject to some implication of further unspecified words qualifying the natural and ordinary meaning of the words employed. Nor is there any statutory or regulatory mandate to deem a student who has not satisfactorily attended a course to have done so.
Flick J then relevantly (given the Applicant’s fifth ground of review in these proceedings) dealt with the Applicant’s alternate submission that cl.573.235 of sch.2 to the Regulations is invalid by reason of inconsistency with the legislative objective, to be discerned from s.137P of the Act, or invalid by reason of some “unfairness” in its operation.
His Honour noted first at [19]:
The potential for an “unfair” or “harsh” application of cl 573.235 may be acknowledged. Indeed, it was the potential for an unfair result which drove Finkelstein J in Jayasekara to conclude that such a result could not have been intended.
His Honour said, with the question of invalidity, at [20]:
“Neither the statutory wording of cl 573.235, nor condition 8202(3), is invalid: Mohammed v Minister for Immigration and Border Protection [2015] FCA 1060 at [16]. Other than the decision of Gyles J in Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 at [37], [2007] FCAFC 199; (2007) 165 FCR 458 at 468, no decision of a Full Court of this Court has concluded that condition 8202 is void or invalid, and other decisions of this Court have proceeded only upon the basis that the condition is a condition which may lawfully be imposed: [2015] FCA 1060 at [16].
In his concluding remarks, Flick J noted that the Applicant had proceeded to complete his academic course, albeit on a bridging visa, not a student visa.
In Mohammed v Minister for Immigration and Border Protection [2015] FCA 1060 (“Mohammed”), an education provider, with respect to the Applicant’s last substantive visa, issued a certificate stating he had not achieved satisfactory progress. A delegate exercised the power under s.116 of the Act and decided not to cancel the visa. A delegate decided not to grant the Appellant a subsequent visa on grounds that he did not satisfy cl.572.235 of sch.2 to the Regulations.
Flick J observed that “the potential for unfairness in the manner in which condition 8202 could operate in the circumstances of an individual case has long been recognised.” His Honour said at [11]:
The form in which condition 8202(3) was then expressed assumed importance to the reasoning of Finkelstein J. To some extent his Honour’s concerns are addressed by the different form in which condition 8202(3) is now expressed.
Flick J referred to a decision of Justice North in Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007 (“Casse”) as follows at [14]:
His Honour Justice North returned to the potential for unfairness in Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007. The form of condition 8202(3) there in issue was the same as that in issue in the present proceeding. Notwithstanding the difference in terminology between the form of condition in Jayasekara and that now in issue, North J held that the “previous version is not relevantly different”. His Honour thus cited with approval the conclusion of Heerey and Sundberg JJ in Jayasekara that “the regulations are to be read as not admitting any qualification of substantial compliance...”: [2013] FCA 1007 at [12]. North J referred to the amendment to condition 8202 that was effected by the Migration Amendment Regulations 2007 (No. 5) (Cth) and to the explanatory statement which “explained that the amendment aimed to put the assessment of education progress into the hands of the education provider”: [2013] FCA 1007 at [15]. His Honour further observed that the “power of the Court is limited once a certificate has been issued” and that in “some circumstances, this may work an injustice”: [2013] FCA 1007 at [17]. To address this prospect, North J observed that s 351 of the Migration Act confers a discretion upon the Minister to substitute a more favourable decision if the Minister thinks it is in the public interest to do so.
Justice Flick then turned to the question of invalidity, acknowledging that the Appellant had not urged that condition 8202(3) of sch.8 to the Regulations is invalid. At [15] to [16]:
15. One of the objectives or policies sought to be achieved by condition 8202(3) is to place the assessment of educational matters in the hands of the education provider – rather than those of the Minister: Jayasekara [2006] FCAFC 167 at [16], [2006] FCAFC 167; (2006) 156 FCR 199 at 202 per Heerey and Sundberg JJ; Casse [2013] FCA 1007 at [15] per North J. On occasion, the conferral upon separate entities of power to make an assessment of factual matters may be inconsistent with the statutory scheme and hence can lead to invalidity: e.g., Plaintiff M47/2012 v Director-General of Security [2012] HCA 46, (2012) 251 CLR 1. The condition of the visa there in question (cl 866.225) required compliance with a Public Interest Criterion (PIC 4002) that required a person not be assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security. A majority consisting of French CJ, Hayne, Crennan and Kiefel JJ concluded that the condition was invalid. In so concluding, French CJ reasoned:
[71] ... The public interest criterion requires the Minister to act upon an assessment which leaves no scope for the Minister to apply the power conferred by the Act to refuse the grant of a visa relying upon those Articles. It has the result that the effective decision-making power with respect to the disentitling condition which reposes in the Minister under the Act is shifted by cl 866.225 of the Regulations into the hands of ASIO. Further, and inconsistently with the scheme for merits review provided in s 500, no merits review is available in respect of an adverse security assessment under the ASIO Act made for the purposes of public interest criterion 4002. Public interest criterion 4002 therefore negates important elements of the statutory scheme relating to decisions concerning protection visas and the application of criteria derived from Arts 32 and 33(2). It is inconsistent with that scheme. In my opinion cl 866.225 of the Regulations is invalid to the extent that it prescribes public interest criterion 4002.
[72] Because public interest criterion 4002 is invalid, the refusal of the plaintiff’s application for a protection visa was affected by jurisdictional error ...
Although not urging that condition 8202(3) is invalid, Counsel for the Appellant in the present case urged that the inherent danger in shifting power from the Minister or his delegate to the education provider was a reason to construe cl 572.235 in a manner which avoided the conclusive nature of a certificate issued by an education provider.
16. Notwithstanding the recognised potential for injustice or unfairness that could be occasioned to a student by the various forms in which condition 8202(3) has been expressed, the conclusion which necessarily must be reached is that:
o condition 8202(3) – as previously expressed and as now expressed – does not permit of any qualification which allows recourse to the concept of “substantial compliance” for the purposes of cl 572.235;
o although the potential for injustice or unfairness had been recognised in respect to the operation of condition 8202(3), there is no decision of a Full Court of this Court which has concluded that that condition is void and, more importantly, existing decisions have proceeded only upon the basis that the condition is one which may lawfully be imposed; and
o clause 572.235 requires compliance with each of the conditions to which a visa is subject.
Counsel for the Appellant repeatedly stopped short of a submission that the condition is invalid. Any such submission would have been rejected. Neither cl 572.235, nor condition 8202(3), is void for uncertainty; nor is either the clause or the condition inconsistent with the Migration Act. But contrary to the submission in fact advanced, none of the decisions relied upon provide any reason, with respect, to construe cl 572.235 in any manner other than that which is conveyed by the natural and ordinary meaning of the words employed. With the exception of the decision in Dai, which in any event was a decision directed to the operation of s 116 of the Migration Act, the recognised potential for unfairness has not led any other Judge of this Court to construe cl 572.235 as having been complied with in circumstances where an adverse certificate has been issued.
Legislative Amendments – Repeal of cl.573.235
It is relevant to observe that concerns regarding the interaction of cl.573.235 of sch.2 to the Regulations and condition 8202 of sch.8 to the Regulations, including the unfairness these provisions of the Regulations may cause in particular circumstances, appear to have been the subject of a Departmental review, consultation and ultimately amendments to the Regulations.
Clause 573.235 of sch.2 to the Regulations was repealed by Select Legislative Instrument No. 30, 2014, with effect from 22 March 2014. The Explanatory Memorandum to the Migration Amendment (Redundant and Other Provisions) Regulation 2014 states that the Regulation amends the Principal Regulations to, inter-alia,:
“repeal the student visa criteria that require a student to have complied with past visa conditions (such as course attendance) in order for a further student visa to be granted. This allows grant of further visas where there were exceptional circumstances (such as illness, bereavement or upheaval in the person’s home country) leading to the breach of conditions. Where there are no exceptional circumstances further student visas may still be refused under the ‘genuine temporary entrant’ or ‘genuine student’ requirements;”
The Explanatory Memorandum goes on to state:
Overview of Part 6 of the Legislative Instrument.
These amendments to the Principal Regulations allow Student visa holders who have breached a visa condition to be granted a subsequent Student visa onshore, where exceptional circumstances apply.
A criterion applicable to each Student visa subclass requires that, where the application is made in Australia, the applicant has complied substantially with the conditions of their previous visa (substantial compliance).
The original policy intention of this criterion was that the term “has complied substantially” would indicate general overall compliance with the conditions of a visa, and that instances of minor non-compliance would not automatically translate to not satisfying the above criterion.
Due to recent case law, it is no longer possible to distinguish between “substantial” and “strict” compliance. Student visa holders who make an onshore application for a subsequent Student visa are not able to satisfy the “substantial compliance” criterion if they have been found to have breached a condition of their previous visa, relating to class attendance and academic progress, irrespective of any exceptional circumstances that led to that breach.
The amendment repeals the “substantial compliance” criterion for Student visas, but does not compromise the integrity of the Student Visa Programme as other provisions within Schedule 2 also direct a delegate to consider the compliance history of a visa applicant, and consider any circumstances that led to such a breach.
The change provides greater fairness to students (and their guardians) wishing to continue to study in Australia, but who unintentionally breach a condition of their visa. It also enhances the ability of the department to provide an alternative pathway to cancellation, where appropriate, by allowing students who are generally compliant to be granted a new visa suitable to their new circumstances. The change also simplifies Student visa regulations, by reducing the number of visa criteria in which the compliance history of the applicant is a material consideration.
Tribunal Decision
The Tribunal dealt with the question of “substantial compliance” as follows (CB 199 at [12] to [13]):
Substantial compliance with Condition 8202(3)
12. There are also visa conditions to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not: Jayasekara v MIMA (2006) 156 FCR 199 (Jayasekara). The Court in Jayasekara held by majority that the requirement of a certificate in the academic result component of condition 8202(3), as it stood when considered in that case, was one such condition.
13. Athough not in the same form as Condition 8202(3) as considered in Jayasekara, the reasoning of the majority in that case applies equally to Condition 8202(3) as amended, and as applicable in this case: Casse v MIMAC [2013] FCA 1007 and Singh v MIAC [2011] FMCA 972. That is, the requirement of an absence of a relevant certification of unsatisfactory course progress or unsatisfactory course attendance by the education provider is one to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not.
The Tribunal concluded (CB 200 at [17]):
“The Tribunal finds that the applicant's education provider has certified the applicant as not achieving satisfactory course progress for the purposes of Condition 8202(3)(a). As noted above, this aspect of Condition 8202 is one to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not. As there is a relevant certificate before the Tribunal from the education provider for the purposes of Condition 8202(3) the Tribunal finds that there is no compliance with Condition 8202(3), let alone substantial compliance. As such, the applicant does not satisfy cl.573.235.”
Judicial Review
In his application for judicial review filed on 12 December 2013, the Applicant relied on three grounds of judicial review. The Applicant was subsequently granted leave to rely on two additional grounds of review.
I note here that had the Applicant applied for his second visa after 22 March 2014, it is likely that he would have been found to have been a genuine student for entry and stay, and not in the circumstances he found himself. This is because his explanation for unsatisfactory progress at the University of Ballarat was accepted as exceptional and his study at the Holmes Institute had been apparently consistent and exemplary.
Ground 1
The Applicant’s first ground of review is as follows:
The Tribunal misconstrued clause 572.235 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Condition 8202 of schedule 8 of the Regulations.
Particulars
(a) The Tribunal erred when it found that the applicant had not complied substantially with Condition 8202 in relation to the last substantive visa the applicant held.
(b) At the time of decision, the applicant had substantially complied with Condition 8202 of the last substantive visa held by the applicant in that:
(i) The applicant had been “enrolled in a registered course” at Holmes Institute within the meaning of Condition 8202(2)(a); and
(ii) Holmes Institute was “the education provider” within the meaning of Condition 8202(3)(a); and
(iii) Holmes Institute had not certified the applicant as not achieving satisfactory course progress under Condition 8202(3)(a).
(c) The Tribunal found that the applicant had not substantially complied with Condition 8202 because previously a section 19 certification had been made and a section 20 notice issued by the University of Ballarat.
(d) In finding non-compliance with Condition 8202, the Tribunal erroneously construed the meaning of “the education provider” in Condition 8202(3)(a) as the University of Ballarat.
(e) The correct interpretation of “the education provider” in Condition 8202(3)(a) was the education provider for a registered course in which the visa holder “is enrolled” under Condition 8202(a).
(f) The Tribunal should have found that the relevant education provider was Holmes Institute for the purposes of Condition 8202.
The Applicant’s argument in support of this ground is as follows:
a)at the time the Tribunal’s decision, he was “enrolled in a registered course” at Holmes Institute, within the meaning of condition 8202(2)(a) of sch.8 to the Regulations;
b)the Applicant was additionally enrolled at the Holmes Institute at the time his last substantive visa expired, and at the time he applied for the visa the subject of the Tribunal’s decision;
c)accordingly, Holmes Institute was “the education provider” within the meaning of condition 8202(3)(a) of sch.8 to the Regulations at the time of decision;
d)as Holmes Institute had not issued a certificate pursuant to ss.19 and 20 of the ESOS Act, the Applicant had substantially complied as required by cl.573.235 of sch.2 to the Regulations, with condition 8202(3) of sch.8 to the Regulations.
The Applicant submits that sub-cls (2) and (3) of condition 8202 of sch.8 to the Regulations should be construed together, such that once the Minister is satisfied the Applicant “is enrolled in a registered course” under 8202(2)(a) of sch.8 to the Regulations, then “the education provider” referred to in 8202(3)(a) of sch.8 to the Regulations must be the education provider in respect of which the Applicant is enrolled in a registered course. In this case, that can only mean the Holmes Institute. In the absence of any certificate issued by the Holmes Institute, then the Applicant met the requirements of condition 8202(1) of sch.8 to the Regulations and, consequently, had “complied substantially” with the condition that applied to his last substantive visa, as required by cl.573.235 of sch.2 to the Regulations.
The Applicant argued there can be no dispute with Justice Finkelstein’s identification of the purpose of condition 8202 of sch.8 to the Regulations in Jayasekara as follows:
“A foreign student undertaking a course of study in Australia who wishes to renew his student visa must show that he is enrolled in an appropriate course, attends classes and does enough work to achieve good grades. Put simply, condition 8202 aims to ensure that a student visa is granted to a person who is taking his studies seriously.”
The Applicant submits that, in considering the authorities in relation to these requirements for the visa under the Regulations, a distinction should be made between circumstances where a visa is cancelled and where an application for a new visa is made. In circumstances where a visa is cancelled, the satisfaction as to the breach of the condition belongs to an outside education provider. However, there is a discretion given to the Minister to decide not to proceed with the cancellation or to revoke a cancellation, where there are exceptional circumstances. On the other hand, where an application is made for a new visa, a decision-maker should be permitted to consider the circumstances under which a breach of an earlier visa occurred.
The Applicant argues his circumstances fell within the second category. Notwithstanding the issuing by the University of Ballarat of the certificate pursuant to ss.19 and 20 of the ESOS Act, a delegate determined not to cancel the visa under s.116 of the Act. Upon an application for a new visa, the decision-maker ought properly to have considered these circumstances in deciding whether the Applicant “complied substantially” with the last substantive visa held by the Applicant. The approach adopted by the Tribunal foreclosed any opportunity to consider the circumstances.
The Minister submits that the Applicant’s first ground of review does not give rise to jurisdictional error for the following reasons:
a)sub-cls. (2) and (3) of condition 8202 of sch.8 to the Regulations are separate requirements and each condition specified therein are self-contained. Clause 8202(3) of sch.8 to the Regulations is not dependent, as the Applicant would argue, upon the satisfaction of the requirement in 8202(2) of sch.8 to the Regulations. Having regard to the ordinary language of that clause, it is clear that 8202(2) of sch.8 to the Regulations, by using the phrase “is enrolled” is cast in the present tense, whereas 8202(3) of sch.8 to the Regulations, by the use of the word “has” is cast in the past tense. These separate and independent conditions recognise that present enrolment and past performance are both relevant to the authenticity of a person’s intention to study;
b)the construction urged by the Applicant would operate contrary to the evident purpose of condition 8202 of sch.8 to the Regulations as identified by Finkelstein J in Jayasekara. For example, “a student could avoid the effect of a certification that he or she has not achieved satisfactory course progress or not achieved satisfactory course attendance by simply enrolling in a different registered course”;
c)the Applicant’s reliance on the timing of the Applicant’s enrolment at the Holmes Institute (asserted to be at the time the Applicant applied for his visa and Tribunal decision) is a distraction. This is because cl.573.235 of sch.2 to the Regulations specifies as the criteria “substantial compliance” with the “last of any substantive visas held by the applicant”;
d)Condition 8202(3) of sch.8 to the Regulations is concerned only with the fact of certification of the visa holder, as not having achieved satisfactory progress or attendance. Certification by an education provider is decisive: Dai, Vannemreddy, Maan, Hassan and Ahmed. The decision-maker must be satisfied, not of the person’s academic prowess and diligence, but of the existence of a certification that the visa holder has not progressed or attended satisfactorily. That is because, “the assessment of educational matters [is to be] in the hands of the education provider – rather than those of the Minister”: Mohammed, Jayasekara, Casse; and
e)the authorities are against the Applicant. At the level of general principle, the cases establish that the fact of certification under condition 8202(3) of sch.8 to the Regulations is conclusive and sufficient to trigger non-compliance with that sub-condition: see decisions cited above. The Minister, in particular relies on two decisions. The first being Hassan where Cowdroy J stated at [44]:
While the appellant relies upon his enrolment at TAFE Queensland to establish that he was no longer an “accepted student” at Hibernia, such fact is irrelevant since at the time the s 19 certification was issued by Hibernia, the appellant remained an “accepted student” at Hibernia.
Whilst conceding that Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 was a case about an earlier iteration of the regulations, the Minister relies on the the Full Court finding held that the absence of certification of satisfactory progress was conclusive and fatal to the appellant, notwithstanding evidence that he had since enrolled in a new course and was progressing well.
Consideration
Before dealing with the Applicant’s arguments in relation to the first ground of judicial review, it is appropriate to set out the criteria, which condition 8202 of sch.8 to the Regulations is directed. This was at the time of the Applicant’s application for a visa and at the time of the decision of the Tribunal, cl.573.235 of sch.2 to the Regulations. Clause 573.235 of sch.2 to the Regulations relevantly required that the Applicant had complied substantially with the conditions that apply or applied to the last of any substantive visas held by the Applicant.
The facts of this case are that:
a)on 19 May 2011 the Applicant was granted a visa (the first visa) to study Engineering Technology at RMIT University;
b)the period of the first visa was 19 May 2011 to 14 March 2013;
c)on 31 December 2011, the Applicant discontinues his studies at RMIT University;
d)on 19 March 2012 the Applicant enrolled in a course of study at the University of Ballarat;
e)on 7 January 2013, the University of Ballarat issued a certificate pursuant to.19 and 20 of the ESOS Act;
f)on 1 February 2013, a delegate decided pursuant to s.116 of the Act not to cancel the Applicant’s visa;
g)on 30 January 2013 the Applicant enrolled in a course of study at Holmes Institute;
h)on 13 March 2013, the Applicant applied for a new visa; and
i)on 18 March 2013, the Applicant commenced his study in a course at Holmes Institute.
Turning to condition 8202 of sch.8 to the Regulations. There is no dispute that the Applicant met condition 8202(2)(a) of sch.8 to the Regulations, as he was enrolled in a registered course. It can be concluded that the Applicant was enrolled in a registered course at Holmes Institute at the time he applied for his visa.
The Applicant argues that, given the circumstances, he was enrolled at the Holmes Institute at the time that his last substantive visa expired. No doubt, on the timeline set out above, this is true. However, it is also the fact that at the time the Applicant held his last substantive visa, the education provider was the University of Ballarat. This education provider having accepted the Applicant as a student on 19 March 2012.
The Applicant argues that the reference to “the education provider” in condition 8202(3)(a) of sch.8 to the Regulations should be construed in the context of the clauses of that condition and, consequently, the reference to “the education provider” must be a reference, in the Applicant’s circumstances, to the Holmes Institute. As the Holmes Institute had not issued a certificate under ss 19 and 20 of the ESOS Act, the Applicant complied with condition 8202 of sch.8 to the Regulations and, consequently, substantially complied with the conditions applicable to the last substantive visa held by him.
I do not accept the Applicant’s arguments. The construction of condition 8202 of sch.8 to the Regulations cannot be engaged in, in isolation. Having regard to the ordinary language, condition 8202 of sch.8 to the Regulations must be construed as establishing a number of discrete requirements for the purpose of cl.573.235 of sch.2 to the Regulations. Clause 573.235 of sch.2 to the Regulations is clearly directed to the last substantive visa held by the Applicant. Consequently, the reference to “the education provider” must include the education provider at the time the Applicant held his last substantive visa. It may be that the Applicant enrolled at the Holmes Institute before his last visa expired, however, the University of Ballarat was also the education provider and the Applicant was an accepted student of this education provider.
I do not accept the Applicant’s argument that the correct interpretation of “the education provider” in condition 8202(3)(a) of sch.8 to the Regulations is the education provider for the registered course in which the visa holder “is enrolled” under condition 8202(2)(a) of sch.8 to the Regulations. Condition 8202(2)(a) of sch.8 to the Regulations is a requirement that says nothing about the education provider. It simply requires that the holder of the visa is enrolled in a registered course. Condition 8202(3)(a) of sch.8 to the Regulations then dictates attention to whether or not the education provider has issued the relevant certification. Recourse must be had to the education provider in which the Applicant was enrolled at the time he held his last substantive visa. I agree with the Minister that 8202(3)(a) of sch.8 to the Regulations looks to the past; that being the period during which the Applicant held his last substantive visa. The mere fact that an Applicant has enrolled in a registered course at another education provider cannot render the fact of certification by the education provider (and a consequent breach of condition 8202 of sch.8 to the Regulations) at the time the Applicant held his last substantive visa, ineffective.
Accordingly the Applicant did not meet the requirements of condition 8202(3)(a) of sch.8 to the Regulations, as the education provider at the time the Applicant held his last substantive visa, had certified him as not achieving satisfactory course progress for the purposes of sections 19 and 20 of the ESOS Act.
There is no dispute that the purpose of condition 8202(3) of sch.8 to the Regulations is to ensure that a foreign student wishing to renew his student visa demonstrates that he attends classes and works sufficiently assiduously to achieve good grades. However, it is settled principle that condition 8202 of sch.8 to the Regulations does not permit of “substantial compliance” as contemplated by the (then) criteria in cl.573.235 of sch.2 to the Regulations.
The facts in Hassan with respect to the timing of the appellant’s enrolments in courses and the issuing of the certificate by the education provider (see [36] above) are on all fours with this case. Cowdroy J found that at the time the appellant received the 572 visa, Hibernia was the provider and the appellant was an accepted student there. At [44] (see above at [41]) His Honour said, with respect to the appellant’s reliance on its subsequent enrolment at another education provider, was irrelevant as at the time “the s. 19 certification was issued by Hibernia, the appellant remained and ‘accepted student’ at Hibernia”.
Although I am not bound by this decision, being a decision of a single judge of the Federal Court, there is nothing to persuade me that I should not follow the approach elucidated by Justice Cowdroy.
For the reasons I have given, I reject the Applicant’s submission that the Tribunal misconstrued cl.573.235 of sch.2 to the Regulations and condition 8202 of sch.8 to the Regulations.
In my opinion, therefore, ground one is not made out.
Ground Two
The Applicant’s second ground of judicial review is:
The Tribunal erred in law in finding that the applicant had not “complied substantially” with Condition 8202 that applied to his last substantive visa.
Particulars
(a) At the time of decision, the applicant had substantial compliance with Condition 8202 because while holding his last substantive visa he had been enrolled in a registered course for which the education provider had not made a certificate under Condition 8202(3).
(b) At the time of decision, the applicant had substantially complied with Condition 8202 of the last substantive visa held by the applicant in that:
(i) The applicant had been “enrolled in a registered course” at Holmes Institute within the meaning of Condition 8202(2)(a); and
(ii) Holmes Institute was “the education provider” within the meaning of Condition 8202(3)(a); and
(iii) Holmes Institute had not certified the applicant as not achieving satisfactory course progress under Condition 8202(3)(a).
(c) In finding non-compliance with Condition 8202, the Tribunal erroneously construed the meaning of “the education provider” in Condition 8202(3)(a) as the University of Ballarat.
(d) The correct interpretation of “the education provider” in Condition 8202(3)(a) was the education provider for a registered course in which the visa holder “is enrolled” under Condition 8202(a).
(e) The Tribunal should have found that the relevant education provider was Holmes Institute for the purposes of Condition 8202.
The submissions of the Applicant in relation to ground two are premised on the acceptance by the Court that the education provider, whilst the Applicant held his last substantive visa, was Holmes Institute, and that Holmes Institute was “the education provider” within the meaning of condition 8202(3)(a) of sch.8 to the Regulations.
I have dismissed these submissions during the course of considering the Applicant’s first ground of review. Accordingly, I find that the Tribunal did not err in law in finding that the Applicant had not “complied substantially” with condition 8202 of sch.8 to the Regulations that applied to his last substantive visa.
In my opinion, therefore, ground two is not made out.
Ground Three
The Applicant’s third ground of judicial review is:
The Tribunal failed to take into account a relevant consideration that if the applicant had substantial compliance with Condition 8202 at the time the last substantive visa held expired, then the applicant had substantially complied with Condition 8202.
The Applicant submits that at the time of the decision of the Tribunal he had re-established compliance with condition 8202 of sch.8 to the Regulations, by being enrolled in a registered course for which the education provider had not made a certification under condition 8202(3) of sch.8 to the Regulations. As such, he had substantially complied with the relevant conditions.
This submission is analogous to that argued on behalf of the appellant in Ahmed. (See [51] above). The submission in these proceedings rely on some notion that, notwithstanding the Applicant’s previous breach of condition 8202 of sch.8 to the Regulations, his subsequent satisfactory progress with a new education provider has the effect that the breach of the condition is rendered ineffective and he now satisfies cl.573.235 of sch.2 to the Regulations.
In Ahmed, the appellant had the cancellation of his visa, for failure to comply with cl.573.235 of sch.2 to the Regulations, revoked under s.137L of the Act. It was argued on his behalf that this revocation had the effect that the appellant now complied with that clause. Relevantly for this ground of judicial review, as argued by the appellant, Justice Flick said in Ahmed at [17]:
“There is, with respect, no reason to construe cl 573.235 in any manner other than according to the natural and ordinary meaning that the words convey. Section 139P does not change the manner in which that clause is to be construed. And there is no reason to construe that clause as subject to some implication of further unspecified words qualifying the natural and ordinary meaning of the words employed. Nor is there any statutory or regulatory mandate to deem a student who has not satisfactorily attended a course to have done so.”
I respectfully adopt the approach of the Justice Flick. I am satisfied that it is not appropriate to construe cl.573.235 of sch.2 to the Regulations so that it is to be qualified by reference to the subsequent academic progress of the student, after the issuing of certificates by an education provider.
Accordingly, I find, therefore, ground three is not made out.
Ground Four
The Applicant’s fourth ground of judicial review is:
In determining whether Mr Wu had substantially complied with the conditions of the visa he previously held, the Tribunal should have considered whether he had complied substantially with the conditions in 8202 having regard to the relevant facts and circumstances of the case. Contrary to the Tribunal’s reasoning, condition 8202(3) was one that the concept of “substantial compliance” could apply to.
Particulars
The Tribunal failed to have regard to relevant facts and circumstances in considering “substantial compliance” with 8202, including:
(a) Mr Wu’s good progress in the course he was enrolled in at the time of the Decision.
(b) The compelling explanation for Mr Wu’s past non-compliance with condition 8202.
(c) The fact that the Department had exercised its discretion not to cancel Mr Wu’s visa based on breach of condition 8202.
(d) The fact that any breach of 8202 was in relation to a prior registered course and not the one Mr Wu was enrolled in at the time of the Decision.
(footnotes omitted)
The Applicant’s submissions are as follows:
25. In considering whether Mr Wu had substantially complied with the conditions of the visa he previously held, the Tribunal should have considered the relevant circumstances of the case. These included circumstances such as the nature of the breach of the condition, the significance of the breach and the fact the breach had been waived under s.116 of the Act due to compelling circumstances. The question of substantial compliance should have been approached as a quantitative and qualitative process.
26. Here, at the date of the Decision in November 2013, the Tribunal found that Mr Wu had passed 13 out of 14 subjects in the Certificate IV and Diploma he had undertaken at the Holmes Institute since March 2013 (CB 199 at [15]). There had been no certification of Mr Wu not achieving satisfactory progress under s.19 of the Education Services for Overseas Students Act 2000 (Cth) by the Holmes Institute.
27. The Tribunal’s interpretation of cl.573.235 had the effect of requiring “compliance” with condition 8202, rather than “substantial compliance” with the condition. “Substantial compliance” is less onerous than “compliance”. For example, something can be completed in substance without being completed. Substantial compliance can be less than perfect compliance. “Substance” has qualitative and quantitative dimensions. The plain meaning of “substantial” includes “true in large part”.
28. The presence of the words “substantial compliance” compels an analysis of the substance of the facts in relation to the provisions. The Tribunal did not undertake the necessary analysis. The fact that Mr Wu met the criteria in relation to the course in which he was currently enrolled because no certificate had been issued by the current education provider in relation to that registered course showed his substantial compliance with condition 8202.
(footnotes omitted)
The Applicant acknowledges that his submissions are in conflict with the decisions in Jayasekara and Casse. The Applicant submits that (at [32]):
a) the better view of the law was set out in the dissenting judgment of Finklestein J in Jayasekara;
b) the majority in Jayasekara was wrong in deciding that 8202 was not a provision that there could be substantial compliance with;
c) alternatively, this case can be distinguished from Jayasekara in that the provision under consideration is different; and
d) North J in Casse was wrong to apply the reasoning in Jayasekara to the operative provision in this case.
As is apparent from the Applicant’s submission, it calls for this Court to decide that a long line of authority of superior Courts is wrong. In particular, the Applicant’s submissions argue that, the following settled principles are wrong:
a)that condition 8202 of sch.8 to the Regulations does not permit of “substantial compliance” as contemplated in cl.573.235 of sch.2 to the Regulations; and
b)it is the certification by the education provider, which constitutes the breach of condition 8202 of sch.8 to the Regulations.
I have earlier set out in some detail relevant authorities in relation to the application of criteria cl.573.235 of sch.2 to the Regulations, where condition 8202 of sch.8 to the Regulations applies. These decisions concern two different regimes of condition 8202 of sch.8 to the Regulations. Notwithstanding this, the principles identified by the Courts have remained constant. In my view, in the circumstances, I am bound by these authorities.
The Applicant understandably refers to the unfairness of the interaction of these requirements. This unfairness has been recognised by the Courts. However, as pointed out by Justice Flick in Mohammed, with the exception of the decision in Dai, the recognised potential for unfairness in the application of cl.573.235 of sch.2 to the Regulations, where condition 8202 of sch.8 to the Regulations applies, has not led any other judge of the superior Court to construe cl.573.235 of sch.2 to the Regulations as having been complied with, in circumstances where an adverse certificate has been issued (see [58] above).
In my opinion, therefore, ground four is not made out.
Ground Five
The Applicant’s fifth ground of judicial review is:
Condition 8202(3) is invalid, either because it is unreasonable or lacking proportionality or because it is repugnant to ss 29 and 31 of the Migration Act.
Section 29 of the Act provides that the Minister may grant a visa and s.31 of the Act provides that there are to be prescribed classes of visas. These prescribed classes of visas are set out in sch.2 of the Regulations, together with the primary and secondary criteria to apply at the time of application or time of decision.
The Applicant’s submissions, as to invalidity, focus on the inconsistency between cl.573.235 of sch.2 to the Regulations, as it then existed, and condition 8202 of sch.8 to the Regulations. It is relevant to note that as from 22 March 2014, upon application for a student visa, an Applicant is only required, at the time of decision, to meet the requirements set out in cl.573.321 of sch.2 to the Regulations and to cl.573.234 of sch.2 to the Regulations.
Clause 573.235 of sch.2 to the Regulations no longer has any place in the Minister’s exercise of discretionary power to grant or refuse a visa. Condition 8202 of sch.8 to the Regulations remains as part of the scheme of the legislation. It comes into play, however, where the Minister or delegate decides whether or not to cancel a visa under s.116(1)(b) of the Act.
I raise this point, because of the concern I have in making the declaration, as sought by the Applicant, in ground five. The effect would travel far beyond the particular vice that is in fact identified by the Applicant under this judicial ground of review. However, for the reasons set out below, it is not a matter I need be concerned about.
The Applicant’s arguments in support are set out in his “Further Submissions of the Applicant” filed on 27 November 2015. They are as follows (at [13]):
“If it is not possible to analyse or evaluate whether there has been substantive compliance with condition 8202(3), then cl 573.235 and condition 8202(3) are inconsistent, in that:
a) Condition 8202(3) is arbitrary and unfair, whereas cl 573.235 calls for a qualitative assessment.
b) Cancellation consequent upon non-compliance with condition 8202(3) can be revoked upon consideration of the substance of the matter, for the purposes of the first visa held. It is inconsistent that where there has been a revocation of the cancellation because of the circumstances of the non-compliance, the circumstances of the non-compliance cannot be considered in relation to eligibility for the next visa to be held.
c) The inconsistency between cl 573.235 and condition 8202 is a product of the fact that in relation to condition 8202, assessment of the matter is given off to the education provider. Sending the assessment process to a third party to do an “all or nothing” certificate in relation to condition 8202 makes cl 573.235 incapable of “substantial compliance”.
d) Condition 8202 is repugnant to ss 29, 31 and 41 of the Migration Act 1958 (Cth) which provide that the Minister may grant visas in accordance with satisfaction of critera set in Migration Regulations and that the Migration Regulatons can stipulate visa conditions.
e) If the Minister cannot consider under cl 573.235 whether there has been substantial compliance with the visa conditions, then the regulations are repugnant to the Act because the Minister cannot assess whether the applicant complies with the criteria.
f) Like in M47 - where shifting the assessment to ASIO disentitled the Minister of effective decision making power - shifting the assessment of progress and attendance to the education provider disentitles the Minister from effective decision making power in relation to whether there has been substantial compliance with the prescribed condition. The effect is to deprive the Minister from determining whether an applicant meets the criteria (here clause 572.235) in relation to the visa.”
The Applicant, to a large extent, relies on the decision of Justice Flick in Mohammed, to illustrate the manner in which a challenge to the validity of cl.572.235 of sch.2 to the Regulations or condition 8202(3) of sch.8 to the Regulations could be made. The Applicant identifies the following, which he argues emerges from the decision of Flick J:
a)the potential unfairness in the manner in which condition 8202 of sch.8 to the Regulations could operate in individual circumstances;
b)the dissenting judgment of Finkelstein J in Jayasekara;
c)the judgement of Gyles J in Dai, in which His Honour held that condition 8202 of sch.8 to the Regulations (as it then was) was invalid for uncertainty and unreasonableness; and
d)the decision of the High Court in M47/2012, in which a criterion - PIC 4002 of sch.4 to the Regulations - was invalid, because it was inconsistent with the legislative scheme.
On the facts before the Court, it could well be said that in the Applicant’s circumstances, the effect of cl.573.235 of sch.2 to the Regulations and condition 8202 of sch.8 to the Regulations operated unfairly. There was evidence at the time the Tribunal made its decision, that the Applicant’s academic progress at Holmes Institute was beyond reproach. Yet his application for the grant of a visa was stymied by the fact of a certification made by another educational provider, which did not result in the cancellation of the visa he held at the time, because the delegate formed the view that there were exceptional circumstances explaining the breach.
Although the issue of invalidity was not directly before Justice Flick in either Ahmed or Mohammed and, consequently, may well be treated as obiter, they correctly, in my respectful opinion, reflect the position expressed or apparent from relevant authorities.
In Ahmed his Honour said at [20]:
“Neither the statutory wording of cl 573.235, nor condition 8202(3), is invalid: Mohammed v Minister for Immigration and Border Protection [2015] FCA 1060 at [16]. Other than the decision of Gyles J in Dai v Minister for Immigration and Citizenship [2007] FCAFC 199 at [37], [2007] FCAFC 199; (2007) 165 FCR 458 at 468, no decision of a Full Court of this Court has concluded that condition 8202 is void or invalid, and other decisions of this Court have proceeded only upon the basis that the condition is a condition which may lawfully be imposed: [2015] FCA 1060 at [16].
In Mohammed, his honour said at [16]:
“…Counsel for the Appellant repeatedly stopped short of a submission that the condition is invalid. Any such submission would have been rejected. Neither cl 572.235, nor condition 8202(3), is void for uncertainty; nor is either the clause or the condition inconsistent with the Migration Act. But contrary to the submission in fact advanced, none of the decisions relied upon provide any reason, with respect, to construe cl 572.235 in any manner other than that which is conveyed by the natural and ordinary meaning of the words employed. With the exception of the decision in Dai, which in any event was a decision directed to the operation of s 116 of the Migration Act, the recognised potential for unfairness has not led any other Judge of this Court to construe cl 572.235 as having been complied with in circumstances where an adverse certificate has been issued.
I am satisfied that I am bound by these decisions and, consequently, I find that ground five is not made out.
Conclusion
For the reasons set out in this judgment, I will dismiss the application for judicial review and the amended application for judicial review, with costs.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 19 February 2016
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