FEDERAL COURT OF AUSTRALIA

Sayem v Minister for Immigration and Multicultural Affairs [2006] FCA 1478

MIGRATION – appeal from Federal Magistrates Court judgment affirming Migration Review Tribunal decision – breach of condition 8202 – student visa cancelled pursuant to s 116 of the Migration Act 1958 (Cth)on ground of failure to achieve satisfactory academic result – whether jurisdictional error established

Education Services for Overseas Students Act 2000 (Cth) s 20

Federal Court of Australia Act 1976 (Cth)s 25(1AA)

Migration Act 1958 (Cth) ss 116, 116(1)(b), 116(3), 119

Migration Regulations 1994(Cth) reg 2.43(2)(b)

Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 cited

Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 149 FCR 558 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448 cited

Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 152 FCR 115 applied

Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193; (2005) 88 ALD 90 referred to

Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 referred to

Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841 referred to

Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60 cited

ABU SADATH MD SAYEM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND MIGRATION REVIEW TRIBUNAL

VID852 OF 2006

MARSHALL J

9 NOVEMBER 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal, fixed at $5,500.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The appellant appeals from a judgment of Federal Magistrate Riethmuller in which his Honour dismissed applications for judicial review of a decision of the Migration Review Tribunal.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to cancel the appellant’s Student (Temporary) (Class TU) visa, subclass 573. 

factual background

2                     The appellant is a citizen of Bangladesh.  He first arrived in Australia on 7 January 2001 on a Student (Temporary) (Class TU) visa, subclass 560. 

3                     During his time in Australia the appellant was granted a series of visas which enabled him to study at Central Queensland University, the Hales Institute and the University of Ballarat.  The last of those visas was a subclass 573 visa, which was granted to him on 25 August 2003 and was subject to condition 8202.  Relevantly, that condition required the appellant to achieve “an academic result that is certified by the education provider to be at least satisfactory”. 

4                     On 8 September 2004, the University of Ballarat sent the appellant a “Notice under Section 20 of the Education Services for Overseas Students Act 2000”.  This notice stated that the appellant had breached a condition of his student visa relating to satisfactory academic performance.  The particulars of the breach were stated to be:

“Student excluded from the course for a period of two years for poor academic performance.  Student managed to pass in only one out of the 6 units he had enrolled during the last two semesters.”

5                     The notice also stated that the appellant’s student visa would automatically be cancelled in 28 days, unless the appellant reported to a compliance officer at the Department of Immigration and Multicultural and Indigenous Affairs before that time.  If the appellant did report to the Department within the specified time, the visa would not be cancelled automatically.  A decision on whether the visa should be cancelled would be made after the appellant reported. 

6                     On 27 September 2004, the appellant reported to the Department and received a “Notice of Intention to Consider Cancellation”.  The notice set out possible grounds for the cancellation of the appellant’s visa.  In particular, it stated that the appellant’s education provider, the University of Ballarat, had advised the Department that the appellant had failed to achieve a satisfactory academic performance and that he had passed only one of the six units he had enrolled in in the last two semesters.

7                     On 25 October 2004, a delegate of the Minister proceeded to cancel the appellant’s Student (Temporary) (Class TU), subclass 573, visa pursuant to ss 116(1)(b) and 116(3) of the Migration Act 1958 (Cth) and reg 2.43(2)(b) of the Migration Regulations 1994(Cth). 

8                     In the “Record of Decision Whether to Cancel Visa” the delegate summarised the reasons the appellant had given as to why his visa should not be cancelled as follows.  In the first semester the course had been different to what he had expected, and in the second semester he had had personal problems.  His wife had been pregnant and his father was sick in Bangladesh.

9                     The appellant was notified of this decision and the reasons for the cancellation.  He sought a review of the decision in the Tribunal. 

LEGISLATIVE SCHEME

10                  At the time the visa was cancelled, s 116 of the Migration Act relevantly provided: 

“(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; …

(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.”

11                  Section 119 of the Migration Act relevantly provided:

“(1)     Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

(a)       give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and

(b)       invite the holder to show within a specified time that:

(i)        those grounds do not exist; or

(ii)       there is a reason why it should not be cancelled.

…”

12                  Regulation 2.43 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, that the Minister is satisfied that the visa holder has not complied with:

(i)         condition 8104 or 8105 (if the condition applies to the visa); or

(ii)        condition 8202.”

13                  Condition 8202 as set out in Schedule 8 of the Migration Regulationsis, and was at all relevant times, in the following terms: 

(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 an 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:

(a)       in the case of a holder whose education provider keeps attendance records — the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

(i)        for a course that runs for less than a semester — for the course; or

(ii)       for a course that runs for at least a semester — for each term and semester of the course; and

(b)       in any case — the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

(i)        for a course that runs for less than a semester — for the course; or

(ii)       for a course that runs for at least a semester — for each term or semester (whichever is shorter) of the course.

(4)        In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.”

14                  Section 20 of the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”) provides:

“(1)     A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance.

Note 1:   The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.

Note 2:   It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.

(2)       The registered provider must send the notice as soon as practicable after the breach.

(3)       The notice must be in a form approved by the Secretary of the Immigration Minister’s Department.

(4)       The notice must:

(a)        contain particulars of the breach; and

(b)       state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and

(c)        state that the student must present photographic identification when so attending; and

(d)        set out the effect of sections 137J and 137K of that Act.

Unincorporated registered providers

(5)       If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.”

the tribunal’s decision

15                  In its statement of decision and reasons, the Tribunal referred to the evidence placed before it and found that it showed that the appellant had failed to maintain results which were considered by the University of Ballarat to be satisfactory.  As a consequence, it held that he had breached condition 8202. 

16                  The Tribunal did accept the appellant’s evidence that he had suffered from depression.  It found that this depression had been the result of his father’s illness and the termination of his wife’s unplanned pregnancy.  However, it found that it did not have a discretion to set aside a visa cancellation once a breach of condition 8202 had been established.  It stated (at [31]-[32]): 

“Once non-compliance with the condition is established the Tribunal is bound, by the operation of s116(3), to affirm the visa cancellation (Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460).  …

Given the finding of a relevant breach, the combined operation of subsection 116(3) and regulation 2.43 requires that the visa held by the review applicant be cancelled.  The delegate’s decision to this effect should be affirmed.”

the federal magistrates court

17                  The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. 

18                  The Federal Magistrate observed that the appellant sought review of the Tribunal’s decision on the following grounds:

·                    that s 20 of the ESOS Act and Subdiv GB of Div 3, of Pt 2 of the Migration Act limit the operation of s 116 of the Migration Act;

·                    that the notice sent to the appellant purportedly under s 20 of the ESOS Act was invalid on the grounds set out in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841, so that there was no power in the Tribunal to cancel the visa, or alternatively, it was not open to it to be satisfied that the appellant had not complied with condition 8202 as the sending of a valid notice was a condition of non-compliance; and

·                    that the Tribunal erred by considering whether the appellant had breached condition 8202 rather than inquiring whether or not he had complied with that condition. 

19                  The Federal Magistrate reviewed the relevant legislation and found that the combined effect of s 116(3) and reg 2.43(2)was to remove any discretion and make visa cancellation mandatory in the case of a breach of any of the conditions referred to in reg 2.43(2). 

20                  In that regard his Honour referred to the Full Court of this Court’s discussion of the effect of the provisions in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193; (2005) 88 ALD 90 (at [17]-[26]).  His Honour also referred to the judgment of Cooper J in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 60 (at [42]-[45]), and the Full Court judgment of Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 152 FCR 115 (at [39]-[44]).  That judgment in turn accepted and applied the reasoning in Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 149 FCR 558; Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448; and Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495.

21                  Applying the principles set out in Zhou by the Full Court, his Honour held that the Tribunal did not commit a jurisdictional error by failing to find that s 116 of the Migration Act was relevantly limited. 

22                  The Federal Magistrate also found that jurisdictional error had not been established on the issue whether it was open to the Tribunal to find that the appellant had not complied with condition 8202.  His Honour held that the breach had been established through evidence that was independent of the s 20 notice. 

23                  In considering whether the Tribunal had applied the correct test in determining whether the appellant had “not complied” with condition 8202 rather than whether he had “breached” the condition, the Federal Magistrate found that there was no difference in meaning that was of any relevant significance.  His Honour found that it was the type of distinction that was well covered by the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 

24                  Having found that no jurisdictional error had been established on any of the contended grounds, His Honour dismissed the appellant’s applications with costs.

the appeal to this court

25                  The appellant now appeals the Federal Magistrate’s decision.  I am empowered to hear that appeal pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth).

26                  The grounds relied on by the appellant in this appeal are in almost identical terms to those relied upon by him before the Federal Magistrate.  The only material difference is that the errors are now said to have been made by both the Federal Magistrate and the Tribunal.

consideration

27                  The judgments referred to by the Federal Magistrate, and by the Full Court in Zhou,authoritatively deal with the appellant’s contention that s 116 is limited by Pt 2, Div 3, Subdiv GB of the Migration Act, and by s 20 of the ESOS Act. 

28                  Further, in Zhou the Full Court held (at [39]), in circumstances similar to those in this appeal, that any alleged defects in a s 20 notice were not material:

“the decision under review is a decision of the MRT to affirm a cancellation decision under s 116 of the Migration Act.  The issue is whether the MRT was correct in its reasoning that the power of cancellation arising under that section was validly exercisable.”

29                  In relation to any potential limitation imposed on s 116 by Subdiv GB, the Full Court stated (at 41]-[42]):

“Turning to the “legal interaction” of Subdivs GB and D, we do not agree with the submission for Ms Zhou that Subdiv GB is required to be construed as inter-related in some way with the previous provisions in Subdiv D.  This is so even in the case where the s 20 notice gives rise to the delivery of the s 119 notice.  The terms of s 137P are against such a construction.  Section 137P(2) provides some support for the concept of “legal interaction” when it provides that a breach in terms of s 137L(1)(a) and (b) which has resulted in a revocation under s 137L cannot be a ground for cancellation of a visa under s 116.  However, s 137P(3) expressly provides that a revocation under s 137L or 137N does not otherwise limit or affect any other power to cancel the visa under the Migration Act.  Apart from the instances provided by s 137L(1)(a) or s 137(1)(b), the intention of Subdiv GB is to leave legally unrelated the provisions of that subdivision and other powers of cancellation in the Migration Act.  In the case of revocation of a cancellation in terms of s 137(1)(a) or s 137(1)(b), the provision in s 137P(3) — by excluding reference to those paragraphs — protects the effectiveness of the revocation against the application of the power in s 116.

For the “legal interaction” relied on for Ms Zhou to be determinative, it would be necessary for s 116 to be interpreted as subject to an implied limitation on its operation.  The wording of that section is against such an implication, as it contains a detailed catalogue of specific circumstances in which the power of cancellation may be exercised.  We agree with Allsop J in Yu that, if Parliament had intended that a breach of condition 8202, or some part of it, was only to occur after the giving of notice under s 20 of the Overseas Students Act, that would have been simple enough for Parliament to say.  Section 116 is also to be construed in its context, including s 124.  The contention for “legal interaction” also arguably requires an implication into that section for which there is no proper basis.”

30                  The Federal Magistrate applied the reasoning in Zhou when he concluded that no jurisdictional error had been established on the basis of grounds one and two.  Accordingly, it cannot be said that his reasoning and conclusions in this regard were erroneous.  It follows that the Tribunal’s power to cancel the appellant’s visa under s 116 of the Migration Act is not limited or conditioned by s 20 of the ESOS Act. 

31                  As counsel for the Minister submitted, the procedural condition to the making of a decision by the delegate under s 116 of the Migration Act is the serving of a notice under s 119 of that Act and not a notice under the ESOS Act. 

32                  If the notice given to the appellant under s 20 of the ESOS Actwas invalid, it does not affect that fact that it was not a precondition to the exercise of power under s 116 of the Migration Act.  In any event, the delegate relied on material other than that contained in the s 20 notice which supported the finding that non-compliance with condition 8202 had occurred.  Additionally, the appellant conceded before the Tribunal that he had failed to achieve satisfactory academic results in semester 2 of 2003 and semester 1 of 2004.

33                  Counsel for the appellant conceded that, on the basis of the Full Court authorities in Zhou, Yu, Humayun and Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238, I am bound to determine this point against his client.  He contended that the above line of authority is “plainly wrong”.  He said that the appellant seeks an opportunity to make that submission to a Full Court.  After the filing of this appeal a judge of the Court in Melbourne with responsibility in relation to migration appeals made a decision that this appeal should be dealt with by a single judge.  No contrary view was expressed on behalf of the appellant until this morning.  It is not appropriate for me in those circumstances to refer this issue to a Full Court.  It is more appropriate for the appellant to seek special leave in the High Court to test the correctness of the above mentioned Full Court judgments.  However, the utility of doing so may be questionable given the matters referred to in the preceding paragraph above concerning an alternative basis for the relevant findings of the delegate and the Tribunal. 

34                  The appellant’s final appeal ground seeks to draw a distinction of significance between a finding of “breach” of condition 8202 and “non-compliance with it”.  The Federal Magistrate held correctly (at [26]) that:

“…in the context of the particular provisions and circumstances of this case the difference in wording does not indicate any difference in meaning that is of significance.”

35                  The appeal must be dismissed, with costs. 

Associate:

Dated:         9 November 2006