FEDERAL COURT OF AUSTRALIA

Tang v Minister for Immigration and Citizenship [2013] FCAFC 139

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The Court

I.    Introduction

1    Mr Tang’s student visa was automatically cancelled because of his substantial academic failure at the University of New South Wales. A delegate of the Minister, and thereafter on a full merits review, the Migration Review Tribunal (‘the Tribunal’) declined to revoke this automatic cancellation. Mr Tang then applied for constitutional writs to what was then the Federal Magistrates Court of Australia (but what is now the Federal Circuit Court of Australia) to quash that decision but failed to do so within the 35 day time limit required under s 477(1) of the Migration Act 1958 (Cth) (‘the Act’). He applied for an extension of time in the Federal Circuit Court (as we shall refer to it) but this application was refused on the basis that the substantive application for constitutional writ relief had no prospects of success: see Tang v Minister for Immigration & Anor [2013] FMCA 76 at [38]. No appeal to this Court lies from such a determination: s 476A(3)(a). Mr Tang then applied for constitutional writ relief against the Federal Circuit Court in the High Court pursuant s 75(v) of the Constitution to quash its decision to refuse to extend time. That Court remitted the application to this Court. The primary judge heard the application and dismissed it with costs: see Tang v Minister for Immigration and Citizenship [2013] FCA 824. It is from those orders that Mr Tang now appeals. The questions on the appeal are, first, whether the Federal Court had jurisdiction to entertain the suit at all; and, secondly, whether the primary judge was correct to dismiss the proceedings. We would answer both questions in the affirmative and dismiss the appeal with costs.

II.     Jurisdiction

2    The Federal Court is a superior court of record and hence, subject to appeal and the possibility of relief under s 75(v) of the Constitution, has jurisdiction authoritatively to determine whether it has jurisdiction: Re Macks; Ex parte Saint (2000) 204 CLR 158 at [53]. The Full Court therefore has appellate jurisdiction to consider whether Mr Tang’s suit is within the Court’s jurisdiction: Federal Court of Australia Act 1976 (Cth), s 24(1)(a).

3    When the Full Court raised the issue of jurisdiction with the parties, both Mr Tang and the Minister submitted that the Federal Court did have jurisdiction to entertain the suit. This Court does not have original jurisdiction ‘in relation to’ migration decisions (s 476A(1) of the Act). The decision of the Tribunal was a migration decision (ss 5, 474 of the Act) but the decision of the Federal Circuit Court was not. The jurisdictional question is whether the proceeding to quash the orders of the Federal Circuit Court refusing to extend the time for the making of an application to quash the ‘migration decision’ of the Tribunal was ‘in relation to’ that migration decision. If it was then this Court had no original jurisdiction.

4    Under s 476A(1) of the Act this Court’s original jurisdiction ‘in relation to’ migration decisions is limited to the following four kinds of suit:

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a)     the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or

(b)     the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c)     the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or

(d)     the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

5    The case remitted by the High Court did not fall within s 476A(1)(a)-(d). Consequently, this Court only had original jurisdiction if the proceeding before it was not ‘in relation to’ the Tribunal’s ‘migration decision’. As French CJ and Hayne J explained in Travelex Ltd v Federal Commission of Taxation (2010) 241 CLR 510 at 519-520 [25] the expression ‘in relation to’ is a phrase that can be used in a variety of contexts ‘in which the degree of connection that must be shown between the two subject matters joined by the expression may differ’. ‘[T]he subject matter of the inquiry, the legislative history, and the facts of the case are all matters’ which will bear upon the judgment whether one concept is ‘in relation to’ another.

6    In this case the statutory context requires that the phrase be given a circumscribed meaning. Section 476A of the Act appears in Division 2 of Part 8 of the Act which is entitled, and governs, ‘Judicial Review’ of migration decisions. Whether valid or invalid, a decision of a tribunal dealing with issues of migration is defined to be a ‘privative clause decision’ (s 474) and all such decisions are defined to be ‘migration decisions’ (s 5). The High Court has jurisdiction to hear suits in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: Constitution, s 75(v). The members of the Tribunal are officers of the Commonwealth. Consequently, the High Court has original jurisdiction to entertain a suit in which a writ of mandamus is sought to compel the Tribunal to decide a matter according to law and an accrued jurisdiction incidental thereto to vacate by a writ of certiorari a decision not reached in that manner. Section 476(1) of the Act grants to the Federal Circuit Court ‘the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution’. Correspondingly, s 476A(1) (set out above) deprives this Court of that same original jurisdiction.

7    The expression ‘in relation to a migration decision’ appears throughout Division 2 of Part 8. In particular, ss 477 and 477A require proceedings ‘in relation to a migration decision’ in the original jurisdiction of the Federal Circuit Court and in this Court’s circumscribed original jurisdiction to be commenced within 35 days of the migration decision. These time limits make little sense if proceedings ‘in relation to a migration decision’ were to include collateral challenges to the underlying migration decision such as might occur in a case alleging false imprisonment. It is established, therefore, that such a challenge is not caught by s 486A of the Act: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651. That decision does not directly govern this case because Mr Tang’s proceeding does not involve a collateral challenge to the decision not to reinstate his visa and because s 486A (which placed time limits on when an application to the High Court ‘in relation to a migration’ had to be made) is contained in Part 8A and not Division 2 of Part 8. There is no relevant difference, however, between Part 8A and Division 2 of Part 8 in relation to the issue of construction which arises and the presence of s 486A in Part 8A may be put aside.

8    Bodruddaza does nevertheless establish, that ‘in relation to’ has a narrower operation in the present context than its ordinary meaning might otherwise suggest. In Bodruddaza the High Court held that the expression ‘a remedy….in relation to a migration decision’ in s 486A ‘should not be given a reading which would take s 486A beyond public law remedies and into the area of what might be called collateral attack upon migration decisions’ (at [22]; see also: [25] and [79]). This does not directly control the outcome of this matter either because Mr Tang’s application is properly characterised as one which seeks a public law remedy, namely, writs of mandamus and certiorari against an officer of the Commonwealth. On the other hand, one of the reasons the High Court accepted the limitation on s 486A (at [24]) was that given in the Explanatory Memorandum for the Migration Litigation Reform Bill 2005 (Cth) which accompanied its introduction. That showed that the legislation was introduced with the avowed objective ‘to impose uniform time limits for applications for judicial review of migration decisions in the [Federal Magistrates Court], the Federal Court (in the limited circumstances that migration cases will be commenced in that Court) and the High Court’.

9    That objective would not be served by extending the concept of proceedings ‘in relation to a migration decision’ to include cases where judicial review is sought of orders made by the Federal Circuit Court in respect of an underlying migration decision. Although it is also true that the broader interpretation would not hinder the achievement of that objective we do not consider that it is the interpretation which would ‘best achieve the purpose or object of the Act’: cf. Acts Interpretation Act 1901 (Cth) s 15AA. Consequently, we conclude that Division 2 of Part 8 of the Act is confined by the use of expression ‘in relation to a migration decision’ to applications for direct judicial review of migration decisions and does not extend to ancillary judicial review proceedings in respect of orders made in proceedings of that kind.

10    There are two other matters which bear upon this conclusion. The first is that this Court has no jurisdiction to hear an appeal from a refusal by the Federal Circuit Court to grant an extension of time under ss 477(2) and 476A(3)(a) of the Act. This is a structural feature which might tend to suggest that it was intended by the Parliament that the Federal Court ought not to review refusals by the Federal Circuit Court to extend time. However, we place little weight upon this matter. The existence of a path of judicial review, even where no appeal is possible, is common: see, for e.g., the review by the High Court under s 75(v) of a refusal by this Court to grant leave to appeal (see, for e.g., ACN 078 272 867 Pty Ltd (in liq) v Deputy Commissioner of Taxation (2011) 86 ALJR 4; [2011] HCA 46). The second is that if the expression is broadly construed then the only court which will have jurisdiction to deal with applications such as the present will be the High Court under s 75(v) of the Constitution. Section 476B(1) provides that the High Court ‘must not remit a matter, or any part of a matter, that relates to a migration decision to any court other than the Federal Circuit Court’. The Federal Circuit Court is not competent to hear an application for constitutional writs directed to itself: see Re Jarman; Ex parte Cook (1997) 188 CLR 595 at 603, 610, 616, 636-637 and 647. The same case is direct authority for the proposition that a claim for constitutional writs directed to a federal court cannot be remitted by the High Court to that court under s 44 of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) for precisely that reason. The effect of the prohibition in s 476B combined with the principle in Re Jarman would be to confine suits of the present kind strictly to the High Court. We doubt that the Parliament intended such an odd consequence.

11    It follows that Mr Tang's proceeding to quash the orders made by the Federal Circuit Court is not ‘in relation to a migration decision’ and s 476A(1) does not remove any original jurisdiction this Court otherwise had to hear his claim. As it happens, the Court has original jurisdiction to entertain applications for constitutional writs: Judiciary Act s 39B(1). This is appropriate in the hierarchical structure of the federal judiciary where this Court is a superior court of record with appellate jurisdiction over the Federal Circuit Court. Consequently, Mr Tang's suit in this Court was within its original jurisdiction. We would note for completeness that this conclusion means that there is no need for applications such as Mr Tang's to be commenced in the High Court; they can be commenced directly in this Court under s 39B(1) of the Judiciary Act.

III.     The Appeal

12    Mr Tang is a Chinese citizen who, until the end of 2010, was enrolled at the University of New South Wales studying mining engineering. To do so he held a subclass 573 Higher Education Sector Visa which was issued to him on 30 June 2008. He commenced his studies in the first semester of 2009. The semester did not go well. Of the four courses he studied he failed two and one of those fails was an ‘Absent Fail’ meaning he did not attend. He did receive, however, a credit in the two other courses. In his second semester he failed all of the courses for which he was enrolled, a performance which he repeated in both semesters of 2010. At the beginning of December 2010, the University suspended him, the effect of which was to prevent him re-enrolling in 2011 but leaving him, nevertheless, with an automatic right of readmission in 2012.

13    Mr Tang’s explanation for his underwhelming performance was that he had difficulty in telling colours apart which can be bad for those, like him, proposing to engage in minerals prospecting and in consequence he says that he lost confidence. That loss of confidence seems to have led to his non-attendance at University and this was exacerbated by, or at least contributed to, an addiction to video games and, perhaps surprisingly, novels.

14    After he was suspended at the beginning of December 2010, he was informed by the University of his right to appeal to the Re-Enrolment Committee by 18 January 2011. He was also told that if the appeal was unsuccessful then the University would report the matter to the Department of Immigration and Citizenship which could have serious consequences for him. These related to the fact that if the University issued Mr Tang with a notice that he was not achieving satisfactory performance in his program of study under s 20 of the Education Services for Overseas Students Act 2000 (Cth) (‘the Education Services for Overseas Students Act’) this would enliven the automatic cancellation of his visa. So much flowed from s 137J of the Act which provides:

137J Non‑complying students may have their visas automatically cancelled

(1)    This section applies if a notice is sent to a non‑citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non‑citizen (even if the non‑citizen never receives the notice).

Note 1: Under that section, a registered education provider must send a notice to a non‑citizen who breaches a condition of the non‑citizen’s visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non‑citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach.

Note 2: Under subsection 20(4A) of that Act, a registered provider must not send a notice on or after the day that subsection commences.

(2)    The non‑citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:

(a)    the non‑citizen complies with the notice; or

(b)    the non‑citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:

(i)    in Australia; or

(ii)    approved for the purposes of this paragraph by the Minister by notice in the Gazette;

makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach.

15    Once such a notice was issued, Mr Tang either had to comply with it (if it required anything) or appear in person before the Department to explain the circumstances leading to his having found himself in receipt of such a notice. If he failed to take either of those steps his student visa would be automatically cancelled within 28 days of the date of the notice.

16    Notwithstanding his suspension in early December 2010 and the appeal rights which were pointed out to him, Mr Tang did not lodge an appeal to the Re-Enrolment Appeal Committee. On 9 February 2011 the University wrote to him and told him that he remained suspended and that it would be informing the Department of his failure to achieve satisfactory performance in his program of study. On 14 March 2011 the University issued Mr Tang with a notice under s 20 of Education Services for Overseas Students Act. As explained above, this set in chain a process which, if ignored, would lead to the automatic cancellation of his visa on 12 April 2011 (being the day after the 28th day after the date of the notice, 14 March 2011). The letter enclosing the notice made this clear and indicated that if he was to do anything about the notice he had to attend on the Department before the expiry of the 28 day period to explain his performance.

17    Mr Tang did not act on the notice. On 12 April 2011, s 137J took its automatic course and Mr Tang ceased to hold a visa. The real prospect of deportation appears to have prompted Mr Tang into action. The Minister has the power to revoke an automatic cancellation of a visa which has occurred under s 137J. Mr Tang wrote to the Department on 20 May 2011 seeking the exercise of this power in his favour. The exercise of this power by the Minister (or, as is more often the case, by his delegate) is constrained by the terms of s 137L provides:

137L 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.

(2)     However, the Minister must not revoke the cancellation on the ground that the non‑citizen was unaware of the notice or of the effect of section 137J.

(3)     A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.

18    Mr Tang determined to rely upon s 137L(1)(b), viz, that there were exceptional circumstances beyond his control. His email to the Department set out his difficulties in accurately perceiving colours, his descent into depression and his addiction to video games and novels. He was fully aware that he had let various critical deadlines slip. Of his failure to appeal the University's decision to suspend him, he told the Department that he had not wanted to study at that time, had changed his address, switched off his phone and never checked his email and, in fact, was quite unaware that his visa could be cancelled. By the time of his application for a revocation of the automatic cancellation, Mr Tang had realised that things had to change, had ‘woken up’ and had decided to ‘stop wasting’ his life. In that regard, he now wished to study mechanical engineering. As a token of his good faith in that regard he explained that he had managed to gain admission to the University of Western Sydney in its course leading to the award of a Bachelor of Engineering commencing on 1 August 2011. That offer was, however, subject to a condition that he disclose his status at the University of New South Wales.

19    On 27 May 2011, a delegate of the Minister refused Mr Tang's application for a revocation of the automatic cancellation of his visa. Mr Tang was entitled to apply for a review of that decision in the Tribunal which, on 3 June 2011, he did. The Tribunal concluded that Mr Tang had breached a condition of his visa and therefore proceeded to ask itself the question posed by s 137L(1)(b), namely, whether this had arisen as a result of exceptional circumstances beyond Mr Tang's control. The Tribunal concluded, on 20 March 2012, that it had not and affirmed the delegate's original decision.

20    Mr Tang then had the right to apply for judicial review of Tribunal's decision in the Federal Circuit Court but was bound by s 477(1) of the Act to do so within 35 days of 20 March 2012, that is, 24 April 2012. Unfortunately a copy of the decision did not reach Mr Tang's hands until 1 May 2012 and he did not file his application for judicial review with the Federal Circuit Court until 11 May 2012, well out of time.

21    Because of the time bar erected by s 477(1) it was necessary for Mr Tang first to seek an extension of time within which to bring his judicial review proceeding. The learned Federal Circuit Court Judge accepted Mr Tang's explanation for why he had delayed in bringing the proceeding but he did not accept that Mr Tang had reasonable prospects of succeeding in the proposed judicial review proceeding. Accordingly, he did not think it was in the interests of the administration of justice that he extend time (which was the question he was required by s 477 to pose himself). The formal order made by the Federal Circuit Court was that the application for the extension be dismissed. Mr Tang then applied for constitutional writs in the High Court. As noted at [1] above that Court remitted the matter to this Court.

22    Before the primary judge, counsel for Mr Tang submitted that it was reasonably arguable that the Tribunal ought to have made further inquiries into whether the University had failed to monitor Mr Tang's academic progress and that this failure was a matter capable of constituting ‘exceptional circumstances’ beyond Mr Tang's control thereby enlivening the discretion to revoke the automatic cancellation. In making its decision under s 137L(1)(b) the Tribunal was bound to act in accordance with any Ministerial Directions which were in place: s 499 of the Act. Ministerial Direction 38 provided (relevantly):

Where DEST or an education provider states in writing that they have concerns about errors and/or inappropriate actions or omissions in the process leading to the breach and the reporting thereof.... decision makers should give due regard to the following matters and make further enquiries as appropriate:

•    if the education provider has failed to accurately monitor the student's course progress or attendance.

23    Mr Tang submitted that Ministerial Direction 38 reflected Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code) which was published in accordance with s 33 of the Education Services for Overseas Students Act. Standard 10 provides relevantly:

10.4     The registered provider must have a documented intervention strategy, which must be made available to staff and students, that specifies the procedures for identifying and assisting students at risk of not meeting the course progress requirements. The strategy must specify:

a)     procedures for contacting and counselling identified students

b)     strategies to assist identified students to achieve satisfactory course progress; and

c)     the process by which the intervention strategy is activated.

10.5     The registered provider must implement the intervention strategy for any student who is at risk of not meeting satisfactory course progress requirements. ...

24    Mr Tang submitted that it was at least arguable that the University had failed accurately to monitor his course progress or attendance. Consequently, he contended, the Tribunal was bound by Ministerial Direction 38 to make further enquiries which it had not done.

25    There is no doubt the Tribunal had the power to make further enquiries if it chose to do so for s 359 of the Act provided that ‘[i]n conducting the review, the Tribunal may get any information that it considers relevant’.

26    The Tribunal approached the matter this way:

There is no evidence of written advice from the Department of Education Science and Training or an education provider that it has concerns about errors or inappropriate actions or omissions in the process leading to the non-compliance and subsequent reporting.

27    As Mr Kennett SC for the Minister correctly submitted, Mr Tang's case fails at the threshold because there was no evidence before the Tribunal of any written statement by the Department of Education Science and Training or an education provider expressing ‘concerns about errors and/or inappropriate actions or omissions in the process leading to the breach’. In the absence of such material, Ministerial Direction 38 simply did not require the Tribunal to make any inquiries.

28    In an effort to circumvent the force of that submission, Dr Greinke for Mr Tang submitted that the Tribunal at least ought to have considered whether to make further inquiries under s 359 and that it had failed to do so. The obligation on the Tribunal, however, was to conduct a review of the delegate's decision: s 348. There may be cases where a failure by the Tribunal to make inquiries about a critical fact the existence of which could be easily ascertained may mean that no review has been conducted: Minister for Immigration Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25]; [2009] HCA 39. But apart from that circumstance, there is no obligation on the Tribunal to consider whether to exercise the power to make inquiries under s 359.

29    Mr Tang's case pulls up far short of establishing anything which might enliven the principle in SZIAI. There was nothing before the Tribunal to indicate any failure on the University's part to monitor his progress or attendance. Indeed, the only evidence before the Tribunal was that the University was fully aware of his failures and gave him an opportunity, that he did not avail of, to argue why he ought not be suspended. The matters he later sought to explain to the delegate were matters he should have explained to the University when he had the opportunity to do so earlier. Mr Tang cannot construct a case that the University failed to monitor his progress from his own failure to respond to the University’s inquiries. Further, as the primary judge pointed out, whatever else one might say about whether Mr Tang’s circumstances were exceptional in the sense required under s 137L, on no view could they be said to be ‘beyond the non-citizen’s control’ as s 137L(1)(b) requires the Tribunal so to be satisfied.

30    The Federal Circuit Court was therefore correct to conclude that Mr Tang’s application had no reasonable prospects of success. No error is shown in the reasons of the primary judge to the same effect in concluding that no relief should be granted against the orders made by the Federal Circuit Court.

31    That makes it unnecessary to consider, if the Federal Circuit Court had formed a legally erroneous assessment of the merits of Mr Tang’s case, whether that would have constituted a jurisdictional error. We would leave for another day, in a case involving an identified legal error by the Federal Circuit Court in refusing to extend time, the question of whether this would constitute a jurisdictional error sufficient to enliven this Court’s supervisory jurisdiction under s 39B(1) of the Judiciary Act.

IV. Disposition

32    The appeal should be dismissed with costs.

Associate:

Dated:    26 November 2013