FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration and Citizenship [2010] FCA 161

THE COURT ORDERS THAT:

1.         The parties are to confer about the terms of draft orders to give effect to these reasons for judgment.

2.         If no agreement is reached the first respondent is to file proposed orders within 21 days.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

BUCHANAN J:

1                          This appeal was heard consecutively with an appeal in Mo v Minister for Immigration and Citizenship [2010] FCA 162.  Each appeal raised for consideration the conditions necessary for the operation of s 20 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”).  The ESOS Act operates in conjunction with elements of the Migration Act 1958 (Cth) (“the Migration Act”).  So far as relevant to the two appeals, the ESOS Act and the Migration Act (and the regulations made under those Acts) operate to establish conditions which must be met by the holders of student visas issued under the Migration Act and the circumstances in which cancellations of those visas may occur.

2                          Mr Hossain, a citizen of Bangladesh, was granted a student visa on 19 September 2007, travelled to Australia on 23 September 2007 and was granted a further student visa on 15 October 2007.  The visa was subject to “condition 8202” which is discussed hereunder.  Mr Hossain enrolled at the Australian International High School (“AIHS”).   Mr Hossain was required to maintain (unless there were satisfactory reasons) a general level of attendance of 80% of scheduled contact hours.  Mr Hossain’s recorded attendance for term 2, 2008 for the period 28 April 2008 to 4 July 2008 was 51%.  In particular his course attendance between 28 April 2008 and 13 June 2008 was not satisfactory.  During the period of his enrolment he was apparently provided with counselling and a number of warnings.  

3                          Conditions relating to student visas are imposed by, or under, the Migration Act.  Section 41(1) of the Migration Act provides:

(1)        The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

4                          Regulation 2.05 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”) has the effect that the visa conditions referred to in Schedule 2 of the Migration Regulations apply.  In turn, Schedule 2 provides, in clause 573.611 that condition 8202 applies to all student visas.  Condition 8202 is contained in Schedule 8 to the Migration Regulations.  So far as here relevant, it requires, in its present form, that neither of two specified events has occurred.  The first is that the student has not been certified by the education provider as not achieving satisfactory course progress under s 19 of the ESOS Act and standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (“the National Code”).  The second is that the student has not been certified by the education provider as not having satisfactory attendance under s 19 of the ESOS Act and standard 11 of the National Code.

5                          The effect of these requirements is that a student must make satisfactory progress and have a satisfactory attendance record.  If an education provider certifies, in accordance with s 19 of the ESOS Act and the relevant standard, that either of those requirements has not been met, the student has not met the requirements of condition 8202.  

6                          Section 19(2) of the ESOS Act provided, at the relevant time:

(2)        A registered provider must give the Secretary particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.

7                          As explained hereunder, it was accepted that, in s 19 of the ESOS Act, a reference to a “prescribed condition” meant a condition prescribed for the purpose of the ESOS Act. That connection is present. Regulation 3.03A of the Education Services for Overseas Students Regulations 2001 (Cth) made under the ESOS Act prescribes condition 8202 for the purpose of s 19 of the ESOS Act.  At the time of events relevant to this appeal it was in the following form:

            Breach by an accepted student of a student visa condition

For subsection 19(2) of the Act, a registered provider must give the Secretary particulars of any breach by an accepted student of a student visa condition in the following table:

Item                 Student visa condition

_____________________________________________________________

1                     8202

8                          Regulation 3.03A has since been amended, in December 2009, to refer also to s 20(1) of the ESOS Act.

9                          There is no issue, for the purpose of the present appeal, that AIHS was required by s 19 of the ESOS Act to advise the Secretary of the Department of Immigration and Citizenship that Mr Hossain’s attendance was unsatisfactory, and did so.  The question on the appeal is whether s 20 of the ESOS Act was also engaged.

10                        Section 20(1) and (2) of the ESOS Act provide:

(1)        A registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.

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

11                        It may be seen that the language of s 20(1) and (2) is relevantly indistinguishable from s 19(2) insofar as it refers to breach of “a prescribed condition of a student visa” and the requirement to communicate advice of the breach “as soon as practicable” after the breach to the Secretary and the student respectively.  I accept that it was intended the two provisions would operate harmoniously and in response to the same set of circumstances.  That is confirmed, if confirmation be required, by reference to the statements made by the relevant Minister, and in the Explanatory Memorandum, when ss 19 and 20 of the ESOS Act were put into their present form, to commence on 1 July 2007. 

12                        If a notice under s 20 of the ESOS Act is sent to a student, s 137J of the Migration Act applies.  It provides for automatic cancellation of a student visa if, within 28 days, a notice under s 20 of the ESOS Act is not complied with or the student does not make himself or herself available to an officer of the Department to make submissions about the matter.  On 15 September 2008 AIHS sent Mr Hossain a notice intended to be in accordance with s 20 of the ESOS Act. Mr Hossain, however, did not comply with the requirements of s 137J of the Migration Act.  His visa was, in the submission of the Minister, therefore cancelled by operation of the Migration Act on 14 October 2008. 

13                        On 6 November 2008 Mr Hossain applied under s 137K of the Migration Act to the first respondent (“the Minister”) for revocation of the automatic cancellation of his visa.  On 24 February 2009 a delegate of the Minister decided not to revoke the cancellation of his visa.  On 12 March 2009 Mr Hossain applied to the Migration Review Tribunal (“the MRT”) for review of the delegate’s decision.  The MRT, on 23 April 2009, affirmed the delegate’s decision.

14                        To this point, the steps taken by Mr Hossain were consistent with his visa having been automatically cancelled under s 137J of the Migration Act.  He was seeking to have that legislative consequence revoked.  However, before the MRT it was argued on Mr Hossain’s behalf that the notice sent to him under s 20 of the ESOS Act was “invalid”.  It may be more accurate to say that it was, if Mr Hossain’s arguments are accepted, ineffective to engage the operation of s 137J of the Migration Act.  The MRT rejected the contention.

15                        On 2 June 2009 Mr Hossain applied for judicial review of the decision of the MRT before the Federal Magistrates Court of Australia (“the FMCA”).  The ground of the application for judicial review was:

1.         In basing its decision on an alleged breach of Condition 8202 acting as the trigger for issue of a notice under s 20 Education Services for Overseas Students Act, 2000 (ESOS Act), the Tribunal relied on an irrelevant consideration.

Particulars

(a)        Condition 8202 is not a “prescribed condition” of s. 20 ESOS Act and so a “breach” of that condition cannot trigger the issue of a notice under that section.

(b)        In any event, Condition 8202 is not capable of being breached.

16                        On 20 October 2009 the FMCA dismissed the application for judicial review (Hossain v Minister for Immigration & Anor [2009] FMCA 1008) rejecting the ground relied upon and the arguments in support of it.

17                        On 10 November 2009 Mr Hossain filed a notice of appeal in this Court.  The grounds of the appeal were stated as follows:

1.         His Honour erred in finding that the “prescribed condition” referred to in sub section 20(1) of the Education Services for Overseas Students Act, 2000 (the ESOS Act) is Condition 8202, that being the condition stated in Regulation 3.03A of the Education Services for Overseas Student Regulations, 2001 as being prescribed for sub section 19(2) of the ESOS Act.

2.         His Honour should have found that there was no condition prescribed for sub section 20(1) of the ESOS Act.

18                        I have come to a different view from the MRT and the FMCA on these questions.

19                        Section 177 of the ESOS Act provides a general regulation making power in the following terms:

The Governor-General may make regulations prescribing matters:

(a)        required or permitted by this Act to be prescribed; or

(b)        necessary or convenient to be prescribed for carrying out or giving effect to this Act.

20                        Regulation 3.03A was authorised by s 177 of the ESOS Act.  The central question in the present case is whether, having regard to the apparent legislative intention reflected by ss 19 and 20 of the ESOS Act, and the similarity of their terms, the reference in Reg 3.03A to s 19 was effective to provide content also to s 20.

21                        It was accepted by counsel for the Minister that prescription of conditions for student visas by regulations made only under the Migration Act would not suffice to give content to ss 19 and 20 of the ESOS Act and that, if no provision such as Reg 3.03A existed neither section would effectively impose obligations upon a registered service provider such as AIHS.  That appears to me to be consistent with the intent and operation of the Legislative Instruments Act 2003 (Cth).

22                        Section 14 of that Act provides:

(1)        If enabling legislation authorises or requires provision to be made in relation to any matter in a legislative instrument, the legislative instrument may, unless the contrary intention appears, make provision in relation to that matter:

(a)        by applying, adopting or incorporating, with or without modification, the provisions of any Act, or of any disallowable legislative instrument, as in force at a particular time or as in force from time to time; or

(b)        subject to subsection (2), by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing at the time when the first-mentioned legislative instrument takes effect.

(2)        Unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

(Regulations made under Acts of the Federal Parliament are “legislative instruments” (s 5(1)).) 

23                        Mr Hossain’s argument is that, in accordance with s 14(2), Reg 3.03A did not show an intention to apply, adopt or incorporate condition 8202 except (in accordance with s 14(1)(b)) so far as s 19 of the ESOS Act was concerned.  That is, Reg 3.03A showed no intention that it should apply for the purpose of s 20 of the ESOS Act.

24                        Counsel for the Minister, Mr Lloyd referred to material concerning amendments to the ESOS Act when ss 19 and 20 were put into their present form.  At the same time Reg 3.03A came into effect and condition 8202 was also modified.  Those matters all took effect on 1 July 2007.

25                        I accept that all those circumstances are consistent with an intention that both s 19(2) of the ESOS Act and ss 20(1) and (2) of the ESOS Act would be activated by the same events.  Mr Lloyd argued that it was apparent that ss 19 and 20 were intended to operate together.  I accept that is so also, but that is not enough to extend the meaning of Reg 3.03A beyond its terms. 

26                        Regulation 3.03A prescribed, “for subsection 19(2) of the [ESOS] Act”, what was a “breach by an accepted student of a student visa condition”.  It did not do so for subsection 20(1).  The omission has now been corrected, but that is not destructive of Mr Lloyd’s argument and plays no part in my reasoning.  The gap cannot be filled only by reference to intention.  Perhaps the omission was unintended or perhaps reference to s 20 was thought to be unnecessary.  However, neither oversight or mistake in my view allow extension of the language of the regulation to include a reference it did not make. 

27                        In my view, the notice sent to Mr Hossain on 15 September 2008 was ineffective for the purpose of s 20 of the ESOS Act and s 137J of the Migration Act.  It follows that s 137J did not, despite the fact that Mr Hossain did not respond to the notice as he was advised he should, operate to automatically cancel his visa. 

28                        If the notice sent to Mr Hossain on 15 September 2008 was not an effective notice for the purpose of s 137J of the Migration Act then, counsel for the Minister accepted, his visa was not automatically cancelled.  In those circumstances the application under s 137K was unnecessary and the proceedings before the MRT were unable to yield a positive outcome to Mr Hossain.  It follows that there would be no point, if Mr Hossain’s arguments are accepted, remitting the matter to the MRT for further attention.

29                        However, counsel for the Minister accepted, very properly, that both the FMCA and this Court had jurisdiction to make an appropriate declaration to deal with the issue.  The precise form of the orders to be made, the parties agreed, could await consideration of my reasons for judgment.  I will afford that opportunity but will ask the Minister to take final responsibility for proposing draft orders, which may be the subject of further submissions if necessary.

Associate:

Dated:         2 March 2010