FEDERAL COURT OF AUSTRALIA

Tang v Minister for Immigration and Citizenship [2013] FCA 824

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

The application

1    This is an application for an order to show cause, remitted for hearing to this Court from the High Court. The applicant seeks to set aside the decision of the Federal Magistrates Court (now the Federal Circuit Court of Australia) in Tang v Minister for Immigration & Anor [2013] FMCA 76. The Federal Magistrates Court refused to extend time for the making of an application to set aside a decision of the Migration Review Tribunal (the Tribunal) not to revoke an automatic cancellation of the applicant’s student visa for breach of the visa conditions.

2    The grounds upon which relief is claimed are:

1.    The third defendant erred in law in finding that the plaintiff’s application did not have reasonable prospects of success in that:

   1.1.    the contention that the second defendant (“the Tribunal”) had denied the plaintiff procedural fairness was reasonably arguable;

   1.2.    the contention that the Tribunal erred in law in respect of the proper construction of s 137 of the Migration Act 1958 and Ministerial Direction 38 made under s 499 of that Act was reasonably arguable.;

   1.3.    the contention that the decision-maker had failed to consider the question as to whether he should have made further enquiries by reason of Ministerial Direction 38 was reasonably arguable.

2.    The Tribunal failed to consider the question as to whether it ought to have made further inquiries by reason of Ministerial Direction 38.

3.    Accordingly it was reasonably arguable that the Tribunal had fallen into jurisdictional error on the face of the record.

4.    The third defendant’s decision was subject to error on the face of the record.

3    Ministerial Direction 38, made under s 499 of the Migration Act 1958 (Cth) (the Act), provides, relevantly, that:

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:

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

4    The significance of Ministerial Direction 38, according to the applicant, is that it reflects Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code), published in accordance with s 33 of the Education Services for Overseas Students Act 2000 (Cth). Standard 10 provides, amongst other things:

   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. ...

5    The applicant’s case is that the Tribunal was bound to but did not consider that the failure of the relevant education provider to monitor the applicant’s progress was a matter capable of constituting “exceptional circumstances” which were beyond the applicant’s control, thereby enlivening the discretion to revoke the automatic cancellation of the applicant’ visa for breach of his visa conditions as set out in s 137L(1)(b) of the Act. On this basis, it is said, the Federal Magistrates Court should have concluded that the application had reasonable prospects of success and thereby erred in not granting the extension of time.

Background

6    The applicant is a Chinese citizen who had been granted a Student (Class TU) Subclass 573 Higher Education Sector visa and had been enrolled since the start of 2009 at the University of New South Wales (UNSW). On 7 December 2010 UNSW informed the applicant that his unsatisfactory academic performance had resulted in his suspension from the University, and advised him that he had until 18 January to appeal the decision. On 9 February 2011, UNSW further advised the applicant that his enrolment had been cancelled and gave him notice that it intended to report the matter to the Department of Immigration and Citizenship. On 12 April 2011 the applicant’s visa was cancelled automatically pursuant to s 137J of the Act.

7    On 18 May 2011 the applicant wrote to the Minister requesting revocation of the cancellation under s 137K of the Act. By s 137L the Minister may revoke an automatic cancellation of a student visa under s 137J. Insofar as is relevant to the present case, the Minister could do so only if satisfied that the applicant’s breach of his visa conditions was “due to exceptional circumstances” beyond the applicant’s control (s 137L(1)(b)).

8    On 27 May 2011 the Minister’s delegate replied, advising that the Minister had decided not to revoke the cancellation of the visa. The applicant applied to the Tribunal for a review of the Minister’s decision on 3 June 2011. On 29 February 2012 the Tribunal wrote to the applicant, inviting him to provide information supporting a revocation of the visa cancellation and to comment on or respond to information which it considered supported a decision to affirm the Minister’s decision. The letter advised the applicant that if he did not reply by 16 March 2012 the Tribunal may decide on the application without taking further action to obtain his views or any other information. The applicant did not respond. The Tribunal proceeded to decide, on 20 March 2012, that the applicant had breached the conditions of his visa and that this breach was not due to exceptional circumstances beyond his control.

9    The applicant filed an application for judicial review in the Federal Magistrates Court on 11 May 2012. The Federal Magistrate, on 14 February 2013, found that the application was brought outside the 35 day time limit for review prescribed by s 477 of the Act, and declined to grant an extension of time. Section 476A(3)(a) of the Act provides that, despite s 24 of the Federal Court of Australia Act 1976 (Cth), no appeal may be brought from a judgment of the Federal Magistrates Court that refuses to make an order under s 477(2) of the Act. The applicant commenced these proceedings in the original jurisdiction of the High Court. The proceedings were remitted to the Federal Court by order made on 2 May 2013.

Discussion

10    The present proceedings are not an appeal from the decision of the Federal Magistrates Court. The applicant seeks to invoke this Court’s supervisory jurisdiction. The available scope for such an exercise, in particular whether relief is confined to the correction of jurisdictional or other error apparent on the face of the record and the extent of the record itself, remains open to debate. Nevertheless, as the first respondent submitted, none of these difficult issues need to be resolved here. No error of law is discernible in the decision of the Federal Magistrates Court, whether jurisdictional or otherwise.

11    The application before the Federal Magistrate was for an extension of time, pursuant to s 477 of the Act. Section 477 provides, relevantly:

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

12    The Federal Magistrate correctly identified the two limbs of s 477. First, has a written application been made to the Court for an extension of time which specifies why the applicant considers it necessary in the interests of the administration of justice that an order extending time to bring the proceedings be made? Second, is it necessary in the interests of the administration of justice to extend the time for the filing of the application? The Federal Magistrate also correctly identified that relevant to this latter issue were two further matters: whether the applicant had a reasonable explanation for the delay in commencing the proceedings and whether the application had reasonable prospects of success.

13    The Federal Magistrate decided that the applicant had satisfied the first limb of the section (at [17]). With reference to the second limb, he found that the applicant had a reasonable explanation for the delay, for these reasons:

    [19] In his affidavit affirmed on 26 September 2012 the applicant deposed that he did not receive a copy of the Tribunal’s decision until 1 May 2012, when he received it from his migration agent, following which he sought legal advice and then filed the initiating application himself on 11 May 2012.

    [20] I accept that the applicant did not receive a copy of the Tribunal decision until 1 May 2012.

14    The Federal Magistrate held, however, that the application did not have reasonable prospects of success, for the following reasons:

     [31] … [T]he applicant’s real complaint … was that the Tribunal did not reach a particular conclusion based on the material or the absence of material before it. However, decisions of this sort are matters for the Tribunal and are not reviewable in judicial review proceedings such as these. For that reason, this aspect of the applicant’s case discloses no basis on which the Tribunal’s decision might be set aside.

     [32] …The evidence does not support a finding that either UNSW or the department which succeeded DEST had expressed in writing any concerns about the process by which UNSW concluded that the applicant had failed to make satisfactory academic progress. That being so, the Tribunal was not obliged by Ministerial Direction No.38 to consider or enquire into whether UNSW had failed to monitor the applicant’s course progress accurately. Therefore the fact that it did not do so did not amount to a failure to discharge a statutory duty.

     [33] The applicant’s further submission, that before it could affirm the delegate’s decision the Tribunal had to be satisfied that his breach of condition 8202 was not caused by exceptional circumstances beyond his control, must also be rejected. This argument, that Tribunal had a positive duty to satisfy itself of the absence of exceptional circumstances which would excuse the applicant’s breach of a visa condition, fails to take adequate account of the fact that s.137L provides that the cancellation may be revoked:

... if, and only if, the applicant satisfies (the Tribunal):

b) that the breach was due to exceptional circumstances beyond the non-citizen’s control; ...

     [34] This argument presupposed that the Tribunal’s lack of satisfaction that a breach was due to exceptional circumstances beyond an applicant’s control implied as a corollary that the Tribunal was reasonably satisfied of the reverse proposition, that the breach was not due to such exceptional circumstances. The argument implied that the Tribunal had to be satisfied of the latter in order to find that it was not satisfied of the former. That is not correct. The two concepts are not corollaries. To be unconvinced of the existence of something does not require proof that it does not exist. The Tribunal had no obligation to satisfy itself that there were no exceptional circumstances before it could be in a position to conclude that it was not satisfied that the relevant exceptional circumstances existed.

…

     [37] The applicant has not identified why, notwithstanding the High Court’s reservation, the common law rules of procedural fairness required the Tribunal to enquire into the conduct of UNSW. Nor did he submit that any of the provisions of the Act which relevantly codify such common law rules might have required the postulated enquiries to be made. I find that procedural fairness did not require the Tribunal to make those enquiries.

15    The Federal Magistrate therefore dismissed the application to extend time to bring the application for review.

16    The applicant submits that the Federal Magistrate fell into error because the Federal Magistrate failed to consider the basis for the reasonable prospects of success of the application for review. The applicant’s principal argument is that the Tribunal unreasonably failed to enquire into the existence of warning letters which should have been sent by UNSW to the applicant, alerting him to his failing academic status. The applicant contends that Standard 10 of the National Code required UNSW to implement a system of monitoring and intervention of foreign students’ academic progress, and that, according to Ministerial Direction 38:

…the Tribunal is bound to take into account the issue of whether the education provider had failed to accurately monitored the course applicant’s progress, and more importantly, the Tribunal was to ‘make further inquiries as appropriate’.

17    In addition, the applicant submits, the Tribunal’s duty to inquire arose from the principle stated in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 that “where it is obvious that material is readily available which is centrally relevant to the decision to be made” a decision-maker should attempt to obtain it. According to the applicant:

The critical fact before the Tribunal was whether the applicant’s breach of visa condition 8202 was due to exceptional circumstances beyond his control. A critical sub-fact central to the consideration was whether the education provider had complied with its monitoring obligations under the National Code 2007.

The sub-fact is critical or centrally relevant because it if was found that the education provider had failed to comply with its monitoring obligations under the National Code 2007, then the Tribunal would have been obliged to find that the visa condition breach was due to exceptional circumstances beyond the applicant’s control…

18    The applicant’s submissions disclose a number of misconceptions.

19    First, in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39, the High Court identified the limited circumstances in which a failure to make an obvious inquiry could give rise to jurisdictional error, but emphasised that no general “duty to enquire” existed (at [25]).

20    Second, the Tribunal was required by s 137L of the Act to ask whether the applicant’s breach of his visa conditions was due to exceptional circumstances beyond his control. As the respondent submitted:

…Ministerial Direction 38 did not oblige the Tribunal to consider [a breach of the National Code] and the applicant did not raise this as an exceptional circumstance beyond his control before either the delegate or the Tribunal. As his Honour stated, the applicant’s real complaint is that the Tribunal did not reach a particular conclusion on the material before it, but this did not disclose any basis on which the Tribunal decision might be set aside: at [31]. There is no basis for the submission that the Tribunal was required to draw a necessary inference that the education provider had not complied with any obligation under the National Code 2008, let alone that this might oblige the Tribunal to carry out inquiries lest it fails to carry out its review functions.

21    Third, the applicant’s case assumes that any contravention of the National Code by UNSW would be an exceptional circumstance beyond the applicant’s control and would enliven Ministerial Direction 38. Neither assumption is correct. As to the former matter, the applicant knew he was failing his studies and knew this was a result of the fact he had no desire to study at that time. As to the latter matter, it is apparent that Ministerial Direction 38, insofar as relevant to the applicant’s case, operated only where the education provider had stated in writing concerns about inappropriate actions or omissions. There is no suggestion that any such concern had been expressed. Accordingly, the provision in Ministerial Direction 38 on which the applicant relies was not engaged.

22    Fourth, the challenge to the reasoning in [37] of the Federal Magistrate’s decision is unsustainable. The Federal Magistrate correctly understood that the applicant relied on Ministerial Direction 38. The point that the Federal Magistrate was making is that neither the common law nor the statute (which gave rise to Ministerial Direction 38) required the postulated enquiries to have been made.

23    Fifth, as the first respondent submitted, even if UNSW had contravened the National Code, such a contravention could not amount to a relevant, let alone a centrally or critically relevant, matter in the circumstances of this case. On the material before the Tribunal, it was evident that the applicant had changed addresses without notifying UNSW, switched off his phone, and was not otherwise contactable. The warning letters which he now argues UNSW was obliged to send would not have reached him. It follows that there is no possible logical connection between the conduct of UNSW which is now the subject of complaint and the statutory test of breach of visa conditions by reason of exceptional circumstances beyond the applicant’s control.

24    Accordingly, there was no error in the Federal Magistrate’s decision to refuse the applicant an extension of time to apply for review. Indeed, the Federal Magistrate was correct to conclude that the application did not have reasonable prospects of success and, thus, to decline to extend time. For these reasons, the application must be dismissed with costs.

Associate:

Dated:    20 August 2013